Proposed FMLA Rules Resolve Key Issues

By Staff Report

Feb. 11, 2008

Newly proposed Labor Department regulations governing the Family and Medical Leave Act will ease many administrative problems that employers have faced in trying to comply with the law, experts say.

The proposed FMLA regulations, released late last week, would update rules that the Labor Department published following enactment of the 1993 law, which requires employers to provide up to 12 weeks of unpaid, job-protected leave in a year after the birth or adoption of a child; to care for a sick child, parent or spouse; or when an employee has a serious illness.

The 477 pages of proposed regulations are a response to many of the issues employers raised after the Labor Department asked for public comments in late 2006.

The revised rules “are trying to restore balance to the FMLA,” says Marc Freedman, director of labor law policy at the U.S. Chamber of Commerce in Washington.

One of the biggest gripes employers have had with the current rules is that employees can take up to two days after an absence begins to notify employers that the time already taken off was under the FMLA.

Under the proposal, though, except in emergency situations, employees would have to follow procedures employers have established for notification.

“Providing advance notice is a huge benefit for employers” in planning and scheduling, says Jason Straczewski, director of human resources policy at the National Association of Manufacturers in Washington.

“This is a big issue. It makes it a lot easier for employers to anticipate and schedule,” Freedman says.

In addition, the proposed regulations would allow employers to directly contact employees’ doctors when employers have questions about FMLA medical certification forms that the doctors have filled out.

By contrast, under the current rules employers are required to find doctors, who, in turn, would contact employees’ physicians.

“This is a huge deal,” says Matt Morris, a consultant with Hewitt Associates in Lincolnshire, Illinois. In some cases, employers have been spending thousands of dollars each year on fees that doctors have charged for contacting the physicians who filled out FMLA certification forms, he says.

If the proposed rules are finalized, that expense could be eliminated since employers could directly contact employees’ physicians on FMLA certification issues.

Other provisions in the proposed regulations would allow employers to require employees to obtain certification twice a year—rather than annually—of medical conditions entitling them to FMLA leave while simplifying the definition of what constitutes a serious medical condition.

But not all issues were resolved in the revised regulations to employers’ satisfaction, with perhaps the biggest being the minimum amount of unscheduled intermittent leave that employees can take. In some cases, employees can take as little as a few minutes of leave under the FMLA, resulting in a big record keeping burden on employers.

To address that problem, employers wanted the Labor Department to set a minimum amount of time—perhaps a few hours—whenever an employee requested leave under the FMLA.

The Labor Department, though, said it lacks the authority because of the way FMLA is written. If such a requirement were to be imposed, it would have to come from Congress, the agency said.

Additionally, the Labor Department largely dodged providing guidance on legislation Congress passed last month that expands the FMLA for employees in military families, with the department requesting comments rather than issuing rules.

“They are throwing it back” to the public, says Sanders Lowery, a Hewitt Associates consultant in Lincolnshire, who added that the Labor Department is raising issues that benefits experts already have asked about the expansion of the federal law.

Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail

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