labor lawAdivision of labor law center

Indiana employers should be aware of changes to the FMLA regulations. Under new proposed changes to the FMLA regulations, employees would be able to use their accrued vacation and personal leave time as well as their paid time off (PTO) as part of their FMLA leave.

The change would be to the portion of the regulations regarding “substitution of paid leave” for FMLA.

This is just one of several proposed changes employers could expect under the proposed new FMLA regulations that were announced by the U.S. Department of Labor on February 11, 2008.

Employers may comment on the changes until April 11, 2008. After that date, the new regulations go into effect. To add a comment, click this link and then type in the keywords “Family and Medical Leave Act,” being sure to include the quotes. It is important for employers to understand that their comments and contact information will be visible to the public.

The “substitution of paid leave for FMLA” works in this way. The Act stipulates that employers are not required to pay workers who are taking FMLA leave. Workers may, however, take their accrued paid sick time concurrently with their FMLA now. Employers, in turn, may require that employees take the sick time concurrently with FMLA.

Under the new regulations proposed by the U.S Department of Labor, employees would be allowed to use not only sick time, but accrued vacation and personal leave, and paid time off (PTO), as part of their FMLA leave, provided they meet all of their employer’s criteria for taking paid leave. Employers may require workers to use all of their accrued paid time off as part of FMLA leave.

As an example, employee Ron has accumulated 10 weeks of paid time off, namely 3 weeks of personal leave, 5 weeks of vacation time, and 2 weeks of sick time. Under the existing rules, he could only take the 2 weeks of sick time as part of FMLA. Under the proposed changes, however, he would be allowed to use all 10 accumulated weeks of paid leave as FMLA.

More Indiana FMLA Changes

A public comment period continues until April 11, 2008 on proposed changes to the FMLA rules.

The Labor Department announced the proposed rule changes on February 11, 2008, and on April 11 they will be published as final, giving them the force of law. All employers must then comply with the new rules.

Some of the changes proposed include regulations that apply to the idea of an employee’s “serious health condition” and the process for medically certifying that condition.

The FMLA allows workers to take up to 12 weeks of unpaid leave annually in the event of a “serious medical condition” in the employee or his or her immediate family. Employers may require medical certification to prevent abuse of the Act. Employers may sometimes require a second or third opinion, provided they pay for them.

The new rule preserves 6 definitions of “serious medical condition” and provides guidance on 2 terms. An existing definition of “serious medical condition” requires 3 consecutive days of incapacity and “two visits to a health care provider.” The term “two visits” is undefined, and could be 2 visits in a month or a year. The new rules clarify that, saying the visits must take place within 30 days of the incapacity period.

Victoria Lipnic of the Labor department says the changes follow “a thoughtful, careful process that included a Request for Information with 15,000 public comments in 2006, many conversations with stakeholders, and the department’s experience in administering and enforcing the law.”

Other changes include a ruling on the “Ragsdale decision” on employer penalties and say light duty should not be counted as FMLA leave. They clarify an employee’s right to settle FMLA cases out of court, allow employers to deny “Perfect Attendance Awards” to workers who have taken FMLA leave, and permit the substitution of paid leave under some conditions. They would also change the “fitness-for-duty” certification for returning to work.

“It’s time to update these regulations,” said the Labor Department’s Lipnic, who added that the changes will also clear up some issues not anticipated when the FMLA was first approved.