It’s been just over 10 years since the Department of Labor last introduced wholesale changes to the FMLA regulations.
Remember those happy days back in 2009, when we were introduced to new FMLA notice requirements (for all), clarity over employee eligibility and holidays, emphasis on call-in procedures, favorable bonus language and waivers of FMLA rights? Oh, and those cute, new FMLA notices and medical certification forms? Oh goodness, those were fun days!
After a decade in which we witnessed both the introduction and end of Administrator’s Interpretations, a return to opinion letters and a spike in on-site visits from our favorite federal agency, could the DOL be forecasting new changes to the FMLA regulations?
The post went largely unnoticed, but the Office of Management and Budget just this week published a notice announcing that the DOL as part of its semi-annual regulatory agenda would be making a “request for information” to:
. . . solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.
Why Does This Seem Like a Big Deal?
It’s a rare occasion for the DOL to solicit feedback on potential changes to the FMLA regulations. Taking the announcement at face value, it certainly appears to suggest that the DOL is interested in revisiting the regulations to determine the ongoing pain points for employers and employees and how regulatory changes could enhance FMLA administration.
To be clear, there is much to enhance. Employers are searching for predictability and certainty in DOL guidance so they can best manage their workplaces. Whether it’s the scope of information an employer can obtain on a certification, the parameters of recertification and second opinions, or how employers can ensure intermittent leave is being used in the manner for which it was intended, there is plenty to clarify in these regulations!
What is the Likelihood of Wholesale Changes to the FMLA Regulations?
If I am a bettin’ man, which I am not, I don’t expect wholesale changes to the regulations. Earlier this month, Helen Applewhaite, the DOL’s Branch Chief for FMLA, told attendees at the Disability Management Employer Coalition FMLA/ADA Employer Compliance Conference that the DOL is in the process of reviewing the model medical certification form with an eye toward making the model forms easier to use, which might include reducing demand on physicians in completing forms and ensuring that medical certification provide employers reliable information to more easily determine whether a medical condition is a serious health condition and the parameters around that condition.
I didn’t get the sense from Applewhaite’s presentation that the regulations necessarily would be revisited, but the above notice clearly seems to indicate that something more than just forms could very well be in play.
Stay tuned. This might just be the beginning of a fun ride.
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.