labor lawAdivision of labor law center

The U.S. Department of Labor recently released proposed updates to the FMLA regulations that affect employers nationwide.

Employers and other interested parties have the opportunity to comment on the changes until April 11, 2008. At that point, the final regulations will be published in the National Register and have the effect of law.

One major change to the FLMA regulations involves “fitness-for-duty” certifications.

Under the current FMLA regulations, many employers require workers on FMLA leave to present certification from a healthcare provider that they are able to resume work. This company policy must be applied uniformly to workers in similar situations. For example, an employer may require every worker who takes FMLA for their own “serious health condition” to present a “fitness-to-work” certificate in order to return. The same employer may chose not to require “fitness-to-work” certificates of employees who take FMLA leave after the adoption of a child.

Current federal laws, including Title VII of the Civil Rights Act of 1964, prohibit employers from using this policy – or any policy – in a way that illegally discriminates against employees in a protected group. This act protects workers from discrimination in employment based on race, color, religion, sex, and national origin. Other federal laws prohibit discrimination against pregnant women, employees over 40 and those with disabilities. 

The new regulations make two changes to the FMLA “fitness-for-duty” certification process. In the first change, an employer may require that the certification directly address the employee’s ability to perform essential functions of his or her job. For example, a warehouse worker who regularly lifts heavy boxes may be required to provide a certification that specifies his or her fitness to lift heavy objects.

A second change to the “fitness-for-duty” certification process could eliminate some FMLA abuse by employees. This regulation concerns employees who take FMLA leave intermittently. Under this regulation, where a reasonable job safety concern exists, an employer can require a “fitness-for-duty” certification from the employee each time they use FMLA leave, before returning to work. Suppose Carl is a truck driver who has vision problems brought on by migraine headaches. Each time that Carl’s takes FMLA leave for a migraine, his employer can require that Carl furnish a “fitness-for-duty” certification that his vision has returned to normal. The employer can require this certification because having a driver who doesn’t see clearly is a valid safety concern. 

However, employers cannot request “fitness-for-duty” certification if no valid safety concern exists. Suppose Maria is pregnant, and suffering from severe morning sickness. She intermittently takes a few hours or a day off of work under FMLA due to this condition, which has been certified by her doctor. Maria’s employer can’t require a “fitness-for-duty” certification each time she returns to work, because Maria’s condition doesn’t represent a valid safety concern.

Two of the biggest changes in the FMLA regulations are in the employer’s favor. Workers are required to follow the employer’s call-in procedures when they must miss work, even if they will be using FMLA leave for the absence. (There are special exceptions for “unusual circumstances” such as when an employee is hit by a train on the way to work.) 

The other major change gives employers five business days, rather than two business days, to send out eligibility and designation notices to employees who may qualify for leave.

The U.S. Department of Labor is requiring every employer to post a notice of the new Military Family Leave signed into law as part of the NDAA, an extension to the FMLA. This notice is required effective immediately, and penalties apply to employers who do not post it prominently.

Employers and other interested parties are encouraged to comment on the proposed rules until April 11, 2008.

Comments may be posted at  http://www.regulations.gov  under the keywords “Family and Medical Leave Act” (be sure to use quotes.) The comments will be published in their entirety, including any contact information provided.

The FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor.

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1. Posted by: Tennessee FMLA Update - Labor Law Center Blog

   [...] Another FMLA change would allow employers to seek clarification of a medical certification from a healthcare professional. But neither the employer nor the provider must violate HIPAA rules on medical privacy. [...]