How to use new FMLA regulations to cut abuse and costs

You’ll benefit from the new FMLA rules

You’ve no doubt heard by now that DOL has proposed big changes in its FMLA regulations – the first major revision of the Family and Medical Leave Act since it was passed in 1993. But what will these changes mean for you?

Mostly good things.

The three main changes:

• Greater control over scheduling around employees’ absences

• Lower costs for verifying employees’ FMLA certifications of serious medical conditions

• The right to demand more frequent re-certification.
DON’T CELEBRATE YET
To be sure, it’s not time for HR to break out the champagne. The regulations are still only proposed – DOL is gathering public comment on them through mid- April.

And some Democratic lawmakers have reacted unfavorably to the changes, which suggests that the regs’ future could be affected by the results of November’s election. Furthermore, with some vexatious FMLA regulations – notably intermittent leave – DOL hasn’t done much to help.

But if the new FMLA rules are finalized as written, they’ll go a long way toward curing some of your chronic headaches about FMLA.

Let’s look at each of the four areas in turn to see exactly how you’ll benefit.

1. EMPLOYEE NOTICE

As the FMLA rules now stand, employees get a two-day window during which they can take off work before telling you that their absence is FMLA-connected.

That loophole has allowed a lot of employees to abuse the system. The new FMLA regulations would close the loophole. They’d allow you to follow whatever procedure you’ve established for FMLA absence notification in all cases except bona fide emergencies.

That means you could require employees to call you about a possible FMLA absence before the start of the scheduled shift they’re going to miss. Employees wouldn’t be able to neglect calling in, then get a doctor to excuse their absence retroactively.

This provision should allow employers to more reliably schedule replacements for those away on FMLA leave. This in turn stands to ease unscheduled overtime costs and annoyance for co-workers forced to cover for last-minute FMLA absentees.

2. VERIFICATION OF DOCTOR’S CERTIFICATES

The current FMLA regulations make it burdensome to check up on an employee’s FMLA certification from his doctor. Even after obtaining employee permission to contact the doctor, you can’t make the contact directly – rather, you have to get your own doctor to do so.

This rule has forced employers to pay out thousands of dollars in fees to medical practitioners, often for phone calls that companies could have made themselves.

The new FMLA regulations would cut out the middleman. HR or the employee’s supervisor could do the verification.

Note: The new regs distinguish between checking the authenticity of the certification – whether the doctor whose name is on it actually issued it – and discussing its content. To do the latter, employers would still need employee permission, but employees who refused might jeopardize their FMLA certification for medical leave.

3. FREQUENCY OF RECERTIFICATION

Currently, you can require that employees obtain certification of a serious medical condition only once a year. The new FMLA regulations would allow you to demand certification – at employee expense, of course – twice a year.

The new re-certification rule promises to be particularly useful in cases where employees are taking intermittent FMLA leave, and thus stretching their 12-week entitlement out over a much longer time.

Unchanged: You can still require certification more frequently if you have reason to believe the employee isn’t being truthful.)

4. MINOR TINKERING WITH INTERMITTENT LEAVE

Unfortunately, DOL didn’t deem it necessary to take major steps on the issue of intermittent leave – which plagues employers more than any other associated with the Family Medical Leave Act of 1993.

The new FMLA regulations do make a minor change in wording on intermittent leave: Employees must make a “reasonable effort” – the current regs say “reasonable attempt” – to schedule the leave so as not to disrupt the employer’s operations.

DOL did not address the current regs’ nightmarish provision allowing employees to take intermittent leave in the smallest chunks the employer’s payroll system will record. So if your system slices time down into 15-minute increments, you still have to administer intermittent leave in pieces that small.