DOL looking to revise FMLA leave regulation
Breathe a sigh of relief regarding the FMLA: The Department of Labor finally recognizes HR’s pain and is doing something about it.
The feds are looking at the first revision of the FMLA in almost 12 years. During that time, courts have struck down some provisions and experience has shown others to be nearly unworkable. (The Department of Labor is accepting comments through Feb. 2. See P. 2 for more info.)
DOL isn’t making promises. But it’s strongly suggesting it will revise the regulations. Officials recently held a series of “stakeholder meetings,” where groups affected by the FMLA – both employers and employees – suggested areas that need a fresh look.
Where to look for FMLA fixes
Here are some FMLA provisions the DOL is taking a second look at to see if they could be made more workable.
Administering intermittent FMLA leave. Three cheers! In its official Request for Information from the public, DOL admits that “the regulations and the administrative details required … may work in combination to allow certain employees to attempt to evade legitimate absence control policies.”
In plain English, DOL is saying it knows people are cheating – claiming intermittent leave for hard-to-pin-down migraines or depression, for example. That’s quite a concession. And this comes despite employee groups who told DOL that administering intermittent FMLA leave is “easy.”
Defining “serious health condition.” DOL admits that confusion over what this really means has put employers in a bad position. Companies have to guess what DOL and the courts consider a serious health condition, or designate all medical absences as FMLA leave.
The problem: Two clashing definitions. The regulations say colds, flu, upset stomachs, etc. aren’t usually serious enough for FMLA leave. But DOL opinion letters say a condition is serious if it makes someone miss three days of work and see a doctor.
Right now, if a cold makes someone miss three days and see a doctor, it’s protected FMLA leave.
Handling medical certification.The combination of FMLA regulations with the more recent medical privacy rules under HIPAA has turned into a witches’ brew for employers.
Before HIPAA, an employee getting certification from a doctor could have the doctor send the completed form directly to you. Now, the employees have to ask for a copy of the completed form from the doctor and bring it to you themselves. As you might expect, employees don’t always understand this distinction, or care.
There’s also the fact that the certification form itself confuses some doctors so that they complete it improperly or vaguely. And when an employer needs to contact the employee’s health care provider for clarification, the requirement that you do so only through your own doctor and with the employee’s permission adds massively to cost and delay.
Some employers we’ve talked to pinpoint certification as the place where the FMLA shoe pinches worst.
What to do now
Unfortunately, nobody can promise comprehensive or quick relief from some of the heaviest FMLA burdens.
But in the meantime, there are a couple of things you can do to make administering the FMLA a little easier on yourself:
Shift some burden on employees. Ask for recertification every 30 days in case of a long-term condition requiring intermittent leave. And you can ask more often if you have any good reason to think the employee’s condition has changed. This may “smoke out” some fakers.
Turn the screws on uncooperative doctors. Physicians must complete the certification forms properly, or the person can’t have FMLA leave. Make sure employees understand where the problem lies, so they’ll have an incentive to press their doctors.
We’ll keep you posted.
One of the newest legislations…
Does a bout with the flu qualify as FMLA leave?
Hold on to your tissues. In some cases, the flu may count as a serious health condition under FMLA leave rules.
Knowing that may come in handy during this particularly nasty flu season.
When a worker needs inpatient care, such as an overnight hospital stay, or he’s undergoing a treatment that requires him to miss more than three consecutive days of work, he qualifies for FMLA leave.
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