Employer, Employee Groups React to Proposed FMLA Amendments

DOL changed portions of existing regulations that have been invalidated by court rulings and added military leave and other provisions based on discussions with stakeholders, public comments, and experience enforcing the law in its current state. The proposed rules include several provisions that, if adopted, will change the procedures for administering FMLA. The rules include the following technical changes:

• Military family leave provisions (some are already in effect)
• Guidance on applying the definition of a serious health condition
• Required annual notice from employers to employees of FMLA rights
• Additional time for employers to send out leave eligibility and designation notices (five business days compared to the current two)
• Allowance of direct contact between employers and health care providers
• Streamlined and clarified medical certification processes
• Absence reporting for FMLA leave requires employees to follow normal call-in procedures

A fact sheet on the proposed rules and a list of frequently asked questions is available on the DOL Web site.

Differing reactions

Employers. Employer groups such as WorldatWork have reacted positively to proposed changes including the following:

• Requiring employees to provide advance notice of nonemergency leave
• Lengthening the requirement to send eligibility and designation notices to employees
• Allowing direct contact between an employer and health care provider
• Clarifying medical certification and recertification processes

Their major concern is that the guidance regarding the definition of a serious health condition doesn’t provide enough clarification.

Districts with attendance incentive programs will welcome a proposed change in the rules for bonus and awards programs. FMLA absences will be treated like all other absences, so employers will no longer have to worry about discriminating when employees don't qualify for awards due to FMLA leave.

Employees. Employee advocates voiced the following concerns:

• The changes are too restrictive
• The new rules did not provide employees with greater access to leave
• Employees will have to undergo more frequent medical visits to certify chronic, long-term medical conditions
• New provisions permitting direct contact between employers and health care providers could jeopardize the confidentiality of employee and family member medical information

Updating posters

DOL has issued interim notices in English and Spanish to address family military leave provisions. These and other provisions are expected to be included in a revised worksite posting that will be issued in the final regulations. HR Services will update our federal worksite poster this fall as soon as the rules are final and notify districts when it is available. In the meantime, districts should post DOL’s interim notice.