Labor Department Tightens FMLA Restrictions

Just four days before George Bush left office, the Department of Labor put new regulations for the Family and Medical Leave Act (FMLA) into effect.

The Family and Medical Leave Act, a 1993 federal law, requires employers to allow eligible employees up to 12 weeks time off per year in the event of serious illnesses or medical conditions of the worker or his or her family.

Leave can be taken intermittently as medically needed. Time off is also protected following childbirth or an adoption (for both mothers and fathers).

Corporate lobbyists had been pushing for the DoL to gut FMLA. The new rules don’t do that. But they do chip away at workers’ rights to take FMLA leave.

The new President does not have authority to repeal federal regulations that have reached the implementation stage. He can instruct the DoL to develop new regulations, but that requires a long period of soliciting public input and developing preliminary proposals before the development of final regulations.

Here are some of the changes, and how they could affect you.

Contact with employee physicians. Under the old rules, employers could assign a physician or other health care provider to telephone or write the employee’s physician. Under the new rules, a human resource professional, leave administrator, or other management official (but not a direct supervisor) can also call to ask questions or demand information.

Recertification. Under the old rules, if an employee’s provider certified that an employee would need intermittent leave over the next twelve months, the employer could not request an additional certification within the period. Under the new rules, an employer can request recertification every six months.

Fitness report. Under the old rules, employers were forbidden from asking employees returning from intermittent leaves—for example, absences due to asthma attacks or flare-ups of back conditions— to produce fitness reports. Under the new rules, employers can demand such reports from safety-sensitive employees even if the absence is as short as a day. Moreover, if the employer requests, the provider must certify the employee’s ability to perform each of her essential tasks. Returns can be held up until the report is submitted.

FMLA designation. The old rules required employers to designate leaves as FMLA within two days of a notice from the employee. Failure to designate prevented the employer from subtracting the time from the employee’s 12-week leave entitlement. The new rules extend the designation period to five business days. Worse, they eliminate the clock-stopping penalty, except where employees can prove that they would have continued working had they known that their absence would be designated as FMLA.

Attendance bonus. Under the old rules, an employee whose only absences were for FMLA reasons could qualify for a perfect attendance bonus. The new rules allow employers to disqualify employees for FMLA absences.

Report time. The old rules gave employees two days to report unforeseeable FMLA absences. The new rules say employees must follow the employer’s customary reporting rules—for example, calling in two hours before a shift begins.

Vacation pay. The old rules allowed an employee to claim vacation pay for unexpected FMLA absences even if company policy required advance applications. Similarly, a worker could claim pay for a one-day absence even if the vacation policy had a one-week requirement. The new rules disallow requests that conflict with the employer’s customary vacation policies.

By Robert Schwartz

Robert Schwartz, a Boston union-side labor attorney, is author of The FMLA Handbook—A Union Guide to the Family and Medical Leave Act. A new edition of the handbook, including explanations of the new regulations, will be available on March 15, 2009 from Work Rights Press (800-576-4552). Price: $20.

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