FMLA changes clarify condition, certification

HR Magazine, March, 2008 by Allen Smith

Proposed changes to the Family and Medical Leave Act (FMLA), published Feb. 11 by the Department of Labor (DOL) in the Federal Register, clarify the definition of "serious health condition" and adjust the FMLA medical certification process.

"It's time to update these regulations--to reflect court decisions, clear up ambiguities and address issues that weren't contemplated when the regulations were first issued in 1995," said Assistant Secretary for Labor Victoria Lipnic.

Objective Test

Many of the 15,000 people who answered the DOL's 2006 request for information urged the DOL to clarify the definition of "serious health condition," saying the current definition is "vague and confusing," the DOL noted. "Many in the employer community focused their comments on the perceived lack of 'seriousness' inherent in certain conditions the definition covers," the DOL added.

Although the DOL retained essentially the current definition, it recommended modifying the "objective test" used for one of the six separate regulatory definitions of "serious health condition." The proposed rules assign a time period to "continuing treatment," which is defined as treatment two or more times by a health care provider. The two treatments must occur within 30 days of the start of the period of incapacity. There is no time frame under current regulations. "Periodic" visits for treatment would be defined as twice or more a year.

Medical Certification

The DOL recommended that employers be able to contact the employees' health care providers directly to authenticate medical certifications. However, the DOL noted that such contact would be allowed only after an employee has the chance to cure any certification deficiencies.

Employers still would have to get employee authorization to comply with the Health Insurance Portability and Accountability Act, cautioned Adam Wit, an attorney with Littler Mendelson in Chicago. Employers also could require employees to comply with their call-in procedures.

However, Debra Ness, president of the National Partnership for Women & Families, said that this change would put workers' privacy rights "in real danger. Workers should not have to choose between allowing their employers to violate their privacy or losing leave they urgently need."

The DOL also recommended permitting an employer to obtain recertification every six months.

ALLEN SMITH, J.D., IS SHRM'S MANAGER OF WORKPLACE LAW CONTENT.

Online Resources

For the longer, more complete version of this article, see www.shrm.org/hrnews. For more coverage of FMLA changes, see page 28.