Proposed FMLA Regulations Clarify Covered Conditions, Certification

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February 12, 2008

The U.S. Department of Labor finally published the long-awaited proposed revisions to the federal FMLA regulations in the Federal Register on February 11, 2008. The proposed regulations are not yet law.
 
The regulations are intended to improve communication between employees, employers, and healthcare providers.
 
Among other things, the proposed revisions address:
 

Medical certification and recertification requirements (including fitness-for-duty);
Contacts with an employee’s doctor;
Joint employment for purposes of counting employees to reach the 50 threshold;
Employee and employer notice requirements;
Nonconsecutive periods of service;
HIPAA requirements;
The Ragsdale decision/penalties; and
The impact of “light duty” assignments on FMLA leave.

 
The following are highlights of the proposed changes.
 
I. SERIOUS HEALTH CONDITION.
 
Many commenters urged the DOL to clarify the definition of “serious health condition,” criticizing the current regulatory definition as vague and confusing. The DOL noted in the preamble to its proposed regulations: “Many in the employer community focused their comments on the perceived lack of ‘seriousness’ inherent in certain conditions the definition covers.”
 
Although the DOL retained essentially the current “serious health condition” definition, it proposed some modifications. It recommended modifying the “objective test” used for one of the six separate regulatory definitions of “serious health condition.
 
The objective test defines a serious health condition as a condition that results in continuing treatment. “Continuing treatment” is defined as a period of incapacity of more than three consecutive calendar days that also involves:
 

Treatment two or more times by a health care provider; or
Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the provider s supervision.

 
The DOL has proposed specifying that two visits to a health care provider must occur within 30 days of the start of the period of incapacity unless there are extenuating circumstances. This would replace the completely open-ended time frame under current regulations.
 
The DOL observed that the current regulations define a chronic serious health condition as requiring periodic visits for treatment but do not define “periodic.” The proposed rule would define “periodic” as twice or more a year.
 
II. MEDICAL CERTIFICATION ISSUES.
 
Many commenters expressed dissatisfaction with the current medical certification process. The DOL has proposed many changes to the medical certifications requirements including:
 

Language that would clarify when a certification is incomplete.
A notice requirement when an employer determines a certification is incomplete. The employer would be required to state in writing what additional information is necessary and to provide the employee with seven calendar days to cure the deficiency.
A requirement that an employer notify an employee if a certification has not been returned in the 15-day time period and give the employee another seven calendar days to provide the certification unless that is not practicable.
A revised WH-380 medical certification form.

 
Employers have had difficulty in investigating suspected fraud related to medical certifications because of the requirement that an employer obtain the employee’s permission prior to seeking authentication of the certification from the employee’s health care provider. The DOL has recommended that employers be allowed to contact an employee’s health care provider directly to authenticate and clarify medical certifications. However, the DOL noted that such contact would be allowed only after an employee has had the chance to cure any certification deficiencies. Employers would still have to get employee authorization to comply with the Health Insurance Portability and Accountability Act.
 
The DOL has also proposed permitting an employer to obtain recertification every six months when a certification indicates that a condition will last for an extended period of time. The DOL believes that six months is a reasonable timeframe but seeks comments on this proposal.
 
III. FAMILY MILITARY LEAVE.
 
The DOL is also seeking comment on many questions arising from the recent expansion of the FMLA to cover employees who, due to a “qualifying exigency,” must take time off when certain family members are on or about to go on active military duty, or an employee must take leave to care for a wounded service member. The DOL is asking whether “qualifying exigency” for active duty leave should be limited to those items of an urgent or one-time nature arising from deployment as opposed to routine, everyday life occurrences. The DOL also has numerous questions about how to apply the FMLA’s existing medical certification requirements for serious health conditions to leave taken to care for a wounded service member.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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