On February 11, 2008, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking, proposing numerous changes to the Family and Medical Leave Act (FMLA) regulations, and calling for public comment before the regulations become final. The draft regulations would change employers’ and employees’ responsibilities under the FMLA and would also change the procedure for taking FMLA leave. While there are numerous changes to the current regulations, employers should take special note of several new issues discussed below. For a more in-depth discussion of the proposed changes, please watch for a comprehensive analysis we will be distributing in the coming days.

Intermittent leave. Despite the fact that most employers consistently identified intermittent leave as the most troublesome part of the FMLA, the DOL has proposed no change to the current regulation allowing workers to take leave in the smallest increment of time permitted under the employer’s timekeeping system for intermittent leave. Instead, the DOL has tried to assuage employers’ concerns over intermittent leave by requiring employees to follow the workplace call-in procedures if they want to take unscheduled, intermittent leave. Currently, employees can take leave and then designate it as FMLA-qualifying leave within two days of the absence. The proposal only allows such an approach in the case of emergencies.

Employee notice requirement. The proposed regulations clarify past ambiguities and impose two notice timeframes: (1) for non-emergency situations, the new regulations would retain the old regulations’ 30-days notice, and (2) for emergency situations, the new regulations would require employees to inform the employer the same day they learn of the need for FMLA leave (if the employee learns of the infirmity during work hours) or the next day (if the employee learns after work hours).

Employer notification process. Proposed § 825.300(b) would give employers five days to inform employees that they are eligible for FMLA leave after an employee has informed the employer of circumstances suggesting that the employee would need FMLA leave. This extends the previous two-day requirement.

Medical certification process. Under the proposed regulations, employers would be able to contact medical providers directly to obtain clarification or authentication of documentation. Under the current rule, that communication may take place only between a health care provider who works for the employer and the employee’s health care provider. This proposal complies with the Health Insurance Portability and Accountability Act’s (HIPAA) privacy rule because a health care provider would still need permission from the patient in order to talk to the employer. If the patient does not give permission, the draft regulations would view that failure to give permission as a failure to provide proper certification if concerns arise about the certification.

“Light-duty.” The proposed regulations clarify that workers on “light-duty” after returning from FMLA-qualifying leave should not have the time count against the employee’s 12 weeks of FMLA leave.