The U.S. Labor Department took a big step last month toward clarifying some of the confusing aspects of the FMLA. The agency issued a series of proposed changes to the law that, if finalized, could help employers administer the complex 15-year-old law and avoid lawsuits.

The public has until April 10 to comment. Expect a final version of the changes in late 2008. To access the text of proposal, a fact sheet and FAQs, go to www.dol.gov/esa/whd/FMLANPRM.htm.

Here's a summary of the 10 most important provisions, according to The HR Specialist newsletter (www.theHRSpecialist.com):

1. Tighter definition of "serious condition
The proposed rule didn't rewrite the definition of a "serious health condition that triggers FMLA leave, as many business groups requested. But it did clarify one small portion.
Current FMLA regulations say a serious condition must involve more than three consecutive calendar days of incapacity plus "two visits to a health care provider." One court (the 10th Circuit) threw a wrench into the works by ruling that those two doctor visits must occur within the more-than-three-day period of incapacity. The new rules propose that the two doctor visits must occur within 30 DAYS of the period of incapacity.

2. Less leeway for employees' notice
Currently, the law is interpreted to allow employees to give notice of their need for FMLA leave up to two days after being out on FMLA leave, even if they could have given notice earlier. The proposal says that, in most cases, employees who take intermittent FMLA leave must follow the employer's call-in procedures for reporting an absence, unless there are unusual circumstances.

3. New employer notice obligation
In addition to conspicuously posting a notice about your FMLA and complaint-filing procedures, you'd have to provide the same notice in your employee handbooks or distribute a copy of your FMLA policy annually.

The good news: Employers would be given an extension of the time in which they must send out FMLA eligibility and designation noticesfive business days instead of the current two days.

If you determine that an employee's FMLA medical certification is incomplete or insufficient, you must return it to the employee, specify in writing what information is lacking, and then give the employee seven calendar days to fix the deficiency.

4. Direct contact with doctor allowed
Good news: The proposed rules would allow employers to directly contact an employee's health care provider to seek clarification about information on an FMLA medical certification form. Currently, employers must ask employees to obtain such information from their doctors.

Note: Employers would not be allowed to ask doctors for additional information beyond what is required by the certification form. And employers and doctors must still meet HIPAA's privacy requirements.

5. New certification each year allowed
The proposal makes clear that employers can require employees to provide a new FMLA medical certification each leave year for medical conditions that last longer than one year. (This codifies a 2005 Labor Department opinion letter.) In addition, the proposal also would allow employers to request recertification of an ongoing condition at least every six months in conjunction with an absence.

6. Clarity on fitness-for-duty certifications
The proposal makes two changes to so-called fitness-for-duty certifications, which employers are currently allowed to require from employees before they return to work after FMLA leave.

First, employers may require that such certifications address the employee's ability to perform the job's essential functions. Second, when reasonable job safety concerns exist, an employer can require an employee taking intermittent leave to present a fitness-for-duty certification before returning to work.

7. Clarity on substitution of paid leave
Current FMLA rules say that employees can takeor employers can require employees to takeany accrued leave (paid vacation leave, personal leave or paid time off) concurrently with any FMLA leave when the employee has met the terms and conditions of the employer's paid-leave policy. The proposed rule clarifies that employees may substitute all forms of paid leave, not just sick leave.

8. Light duty doesn't count as FMLA leave
The proposed rules make clear that the time employees spend performing "light duty work does NOT count toward their 12 weeks of FMLA entitlement. (This was included because at least two courts have held that employees use up FMLA leave time while on light-duty assignment after FMLA leave.)

9. Settlement of past FMLA claims allowed
Employees can retroactively volunteer to settle their FMLA claims without court or Labor Department approval. The Labor Department issued this clarification in response to a recent 4th Circuit decision that interpreted FMLA regulations as prohibiting employees from waiving their rightseither prospectively or retroactively. Prospective waivers of FMLA rights will continue to be prohibited.

10. Perfect attendance awards can be denied
The proposal would allow employers to deny a perfect attendance award to employees who take FMLA leave (and thus are absent) as long as they treat employees taking non-FMLA leave in an identical way.

Source: TheHRSpecialist.com