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A Better Partnership


Feb 2008
February 12, 2008

Department of Labor Releases Proposed FMLA Regulations

Last year the U.S. Department of Labor, Wage and Hour Division (WHD) conducted an extensive survey seeking opinions on possible amendment of the regulations implementing the federal Family and Medical Leave Act (FMLA). On Monday, February 11, the WHD released proposed new regulations reflecting its determinations following the survey. The stated purpose of the new amendments is to clarify the regulations, particularly in areas that have been the subject of conflicting court opinions.

First, it should be noted that the proposed regulations do not cover the recent amendment of the FMLA to add two new categories of leave for military families. One of those categories--allowing leave when an employee's covered family member enters active duty in the U.S. military--will not take effect until the WHD issues regulations describing the circumstances under which such leave may be taken. The new regulations proposed on February 11 do not cover this topic, but the WHD invites comments on it and will issue additional proposed amendments on this issue in the future.

The proposed regulations include numerous amendments to the existing FMLA regulations. Following is a summary of some of the major proposed amendments.

Release of FMLA Claims. Presently, an employee cannot waive his or her FMLA rights in a contract. Courts have issued conflicting opinions on whether this means that potential FMLA claims cannot be released in a severance agreement. The WHD has interpreted the regulations to allow such releases, but some courts have disagreed, in part because the regulations did not explicitly authorize such settlements. The proposed regulations specifically state that such settlements are allowed.

Employer Notice Requirements. In 2002 the Supreme Court invalidated the automatic penalty provisions of the regulation requiring an employer to notify an employee that he or she has been placed on FMLA leave. However, the Court qualified its decision by stating that an employee might have a claim against an employer who failed to provide notice if the lack of notice caused the employee harm. The proposed regulations address this issue by distinguishing situations in which the employee is not harmed (such as an employee who could not in any event return to work because of his/her serious health condition) from situations in which the employee may be harmed (such as an employee who could have returned by finding another caretaker for a relative with a serious health condition).

The proposed regulations also revise the FMLA notice requirements by allowing an employer five days (rather than the current two days) to give notice of FMLA leave to the employee, but also expand the employer notice requirements significantly, including requirements to tell the employee whether he or she is eligible (and, if not, the reason) and whether he or she has remaining FMLA leave to cover the absence.

The WHD also proposes to delete the regulation that treats an employee as entitled to FMLA leave if the employer fails to advise the employee that he or she is not entitled to leave in connection with an absence. This regulation has consistently been struck down by the courts.

Bonus Disqualification. The current regulations require employers to pay "perfect attendance" and other similar bonuses to employees if they fail to qualify due to FMLA leave. The proposed regulations allow employers to disqualify employees from such bonuses due to FMLA leave, provided that employees on other types of leave are not granted the bonuses.

Eligibility. The proposed regulations amend the "12 months of employment" eligibility requirement by stating that separate periods of employment will be counted toward the 12 months if they are within 5 years. The proposed regulations also state that active U.S. military service counts toward the period of employment and hours worked necessary to become eligible under the FMLA.

"Serious Health Condition." The proposed regulations amend the provision allowing FMLA leave when an individual is incapacitated for more than three days and is receiving continuing treatment by a health care provider to require that the two visits to a health care provider must occur within a 30-day period except in "extenuating circumstances."

The proposed regulations also provide that to qualify for FMLA leave due to a "chronic serious health condition" an individual must visit a health care provider regarding the condition at least twice each year.

Employee Notice. The current regulations include language implying that an employee need not report an FMLA absence promptly as long as he or she does so "within one or two business days." The proposed regulations delete this language, and require the employee to report an unforeseeable absence as soon as practicable. Under the proposed regulations, employees would also be required to provide more detailed information to their employer in connection with a request for FMLA leave, including whether the employee or family member is unable to work or perform daily activities, the anticipated duration of the absence, and whether the employee or family member intends to visit a health care provider or is under the care of a health care provider. Finally, the proposed regulations also clarify what penalties an employer may impose if an employee fails to give adequate notice of an FMLA absence.

Medical Certifications. The proposed regulations add specific provisions requiring an employee to supplement an incomplete or insufficient medical certification within seven days after being notified by the employer of the need for supplementation, unless the employee is unable to do so despite diligent good faith efforts.

The proposed regulations clarify the rules for "recertifications" of chronic conditions of indefinite or unknown duration by allowing an employer to require recertification each six months. The regulations also confirm the WHD's previous opinion letter stating that an employer may insist on a "certification" for a continuing health condition (including a second and third opinion if needed) once each year.

The current regulations prohibit the employer from contacting the employee's health care provider, and allow an employer's health care provider to do so only with the employee's consent. The proposed regulations allow an employer to contact the employee's health care provider directly to clarify an insufficient certification (after giving the employee an opportunity to do so) or to authenticate a certification, and provide that if the employee refuses to consent to a valid request to clarify an insufficient certification, the leave may be denied.

The proposed regulations allow an employer to require an employee's medical certification (including "fitness to return" certification) to include a description of which "job functions" the employee is unable to perform (if the employer provides the health care provider with a list of job functions), and also allow the employer to require "follow-up" fitness certifications with respect to intermittent leave every 30 days if the employee's condition raises issues about safe job performance.

The proposed regulations also require an employee to direct his/her health care provider to provide complete information to an employer's health care provider with respect to an employer's request for a second opinion.

The proposed regulations and explanatory "Notice of Proposed Rulemaking" are posted on the WHD's Web site at The notice invites comments during the normal 60-day comment period. Time will tell whether these regulations will be delayed by political battles, as was the case with the WHD's 2004 amendments to the FLSA white-collar overtime pay exemption regulations.

If you have questions, or if you would like a copy of the proposed regulations highlighting the changes, contact any member of the WNJ Labor and Employment Practice Group.

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