March 11, 2008

New Proposed FMLA Regulations

The Family and Medical Leave Act (FMLA) top is about to be spun, or, may be turned on its head.  A law that has been in effect nearly 15 years with little legislative or regulatory change, has been hit with both in the first two months of 2008 (see January’s Benefit Beat, FMLA Brings Benefits to Military Families).  On February 11, 2008, the Department of Labor issued proposed regulations that will, if finalized, make some important changes that employers need to know. 

Summary of Proposed Regulations

Employer Notice Requirements

From an employer’s perspective, one of the most important issues being addressed in the proposed regulations are some new notice requirements. 

  • Electronic FMLA Posting.  An employer subject to the FMLA law must post an FMLA notice, similar to other employment postings.  These regulations provide that the FMLA posting can be electronic, as long as the employer’s entire population, including job applicants, has access to the electronic system. 
  • Notice of Employee’s Rights under FMLA.  The regulations would require that an annual notice of FMLA rights be delivered to employees.  This notice could be included in an employee handbook, or could be delivered electronically.  The goal is to make certain that employees are well aware of their rights and obligations under the FMLA. 
  • Eligibility Notice and Designation Notice.  The regulations would also address individualized notices at the time an individual becomes eligible for FMLA.  The regulations would divide this notice into two parts: an eligibility notice and a designation notice.  These notices could be provided together, or separately.  The eligibility notice would have to be provided within 5 business days of an employee’s request for FMLA leave, or the employer’s knowledge of the need for FMLA leave. The proposed regulations include sample notices in the appendices.  The designation notice would be provided concurrent with, or follow, the eligibility notice, and would more specifically delineate the time period for the FMLA, as well as the employee’s rights and obligations during FMLA, such as the obligation to pay for the employee’s share of health premium.

Employee Notice Requirements

While an employee requesting FMLA leave need not specifically use the words, “FMLA”, these regulations would require employees to give an employer sufficient information to allow an employer to know that the situation would warrant designation as FMLA leave.  Calling in sick, in and of itself, would not be sufficient information.

Medical Certification

These regulations propose a significant modification to the medical certification process.  The intent would be to make the medical certification more useful.  Of particular importance to employers is that the regulations would allow an employer to contact the employee’s health care provider directly, either to authenticate the medical certification, or to get clarification on information contained in the medical certification.  What this means is, if an employer has reason to doubt the validity of the medical certification, the employer could contact the provider directly, and ask the provider to confirm that he/she did, in fact, complete the medical certification.  If the information contained in the medical certification is unclear or incomplete, the employer could ask for clarification.  This would require compliance with HIPAA privacy rules, which might mean that the employee would have to authorize the disclosure of additional information.

Other Issues

The regulations address many other issues, ranging from how to calculate an employee’s eligibility for FMLA leave, specifically as it relates to the 12-months of employment requirement, and the 75-mile radius requirement; to the right to take light duty without it counting toward FMLA utilization.  If these regulations are finalized, there will be lots for employers to do. 

Comment Period

The comment period for the regulations ends on April 11, 2008.  It is projected that the regulations will be finalized prior to the current Administration’s departure from office.  The regulations are not reliance regulations; therefore, an employer is not required to make changes just yet; stay tuned for next steps.  Not only can we expect these regulations to be finalized, but there is talk in Congress of further modifying the law.

Additional information about the proposed FMLA regulations:

Also contained in these regulations is a request for comments on the recently enacted military leave modifications to FMLA.  As a reminder, however, an employer is obligated to comply with the new Servicemember Caretaker Leave, and encouraged to comply with the Exigency Leave requirement (seeFMLA Brings Benefits to Military Families).


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

Accelerated Recovery Resources

Access articles and tools to help your business generate cash, improve leverage, and align & transform as you recover from the pandemic.

COVID-19 Resources

Access all COVID-19 related articles to help your business respond to the pandemic.

Insights in Your Inbox