New Department of Labor Regulations Published on November 17, 2008

November 15, 2008
DOL To Issue New and Updated FMLA Regs
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On Nov. 17, 2008, the DOL will publish the first revisions to its rules since the statute was enacted in 1993. A copy of the current rules are available here. The revised rules and comment are available here. They span 762 pages. Some of the revisions are as follows:

Serious health condition. The rule clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Second, it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.

Employee notice requirements. The modifies a provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the final rule, the employee must normally follow the employer's normal and customary call-in procedures.

Medical certification. Responding to concerns about medical privacy, the rule adds a requirement that limits who may contact the health care provider and bans an employee's direct supervisor from making the contact.

Light duty. Under the final rule, time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee's right to job restoration is held in abeyance during the light duty period.

Perfect attendance awards. The final rule allows employers to deny a "perfect attendance" award to an employee who does not have perfect attendance because he or she took FMLA leave—but only if the employer treats employees taking non-FMLA leave in an identical way.

Waiver of rights. The DOL has finalized its longstanding position that employees may voluntarily settle their FMLA claims without court or departmental approval. However, the rules continue to prohibit prospective waivers of FMLA rights.

Mitchell H. Rubinstein

Code of Federal Regulations