Fifteen years after the Family and Medical Leave Act was enacted, the Department of Labor is in the final stage of comprehensively revising its regulations interpreting the act. This past Monday, Feb. 11, the department published a notice of proposed rulemaking, which amounts to “draft” regulations for public comment. This followed a lengthy period when comments and suggestions for revisions were both solicited and accepted from employers, employees, law firms and advocacy groups. Over the next 60 days, the public will have an opportunity to comment on the proposed revisions, after which the Labor Department will issue its final revisions.

Over the years, I have written numerous columns on the ambiguity of the regulations and, at times, the apparent inconsistency between the language of the FMLA and the Labor Department’s regulations. In publishing the proposed regulations, the Labor Department notes that its proposal “provides needed clarity for both workers and employers about the law’s coverage and should not prevent any worker from exercising his or her right to FMLA lease. Updating and clarifying the regulations will reduce uncertainty in the workplace for everyone.”

Ragsdale Revisited

A number of the areas addressed by the proposed regulations have been the source of extensive litigation, including the U.S. Supreme Court’s 2002 decision in Ragsdale v. Wolverine Worldwide Inc., in which the court found as invalid the FMLA regulation that employees who are not provided notice of their rights were entitled to an additional 12 weeks of leave. The Labor Department’s notice observes that in addition to this specific penalty provision, other courts have invalidated similar categorical penalty provisions contained in the regulations. The proposed regulations eliminate the type of categorical penalties invalidated by the Ragsdale court. Instead, the department proposes that an employee is entitled to remedies if he or she can show “individualized harm” based upon the employer’s alleged interference with, or denial of, his or her FMLA rights.

Serious Health Conditions

The next major area of clarification involves the definition of a “serious health condition.” Although the six categories of serious health conditions will likely remain unchanged, the proposed rules address the category that includes leave involving three consecutive calendar days of incapacity plus “two visits to a health care provider.” At least one appellate court has held that the “two visits to a health care provider” must occur within the period of incapacity in order to qualify as a “serious health condition.” The Labor Department proposes that the two visits need not occur within the specific period of incapacity but must occur within 30 days of the period of incapacity.

Additionally, one of the benchmarks for individuals with a chronic serious health condition is that the individual should make “periodic visits” for the condition in question. The department proposes that an individual must make at least two visits to a health care provider per year for the condition in question in order to qualify for coverage.

Light Duty

At least two courts, both in the 7th Circuit, have held that an employee who voluntarily accepts a light-duty position in lieu of taking FMLA leave exhausts the 12 weeks of leave while working in the light-duty position. The regulation in question, Section 825.220(d), presently states that job restoration rights under the FMLA are available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and a period of light duty. The department proposes to eliminate the reference to light duty in this portion of the regulations in order to clarify that light-duty work is not the equivalent of leave under the FMLA.

Return to Work

One particular area of consternation to employers has been their ability (or inability) to obtain meaningful return-to-work certifications under the FMLA. Presently, the regulations provide that the return certification must only be a “simple statement” of the employee’s ability to return. Furthermore, the regulations provide for no follow-up from the employer in order to determine the context or meaning of the “simple statement.”

The proposed regulations dramatically increase the employer’s ability to obtain a meaningful certification. Specifically, the department has proposed that the employer may provide an employee with a list of essential job duties and may require the employee’s health care provider to certify that the employee can perform these duties. Moreover, the proposed regulations delete the requirement that employers may not obtain additional information and specifically propose that the process of clarifying the fitness-for-duty certification may result in the employer obtaining additional information not initially provided in the return certification. The regulations propose, however, that the list of essential functions must be provided to the employee (for his or her health care provider) concurrent with the eligibility notice.

Notice

Along the same lines, in addition to proposing changes when the employee seeks to return to the workplace, the proposed regulations amend the process when the employer is seeking to determine the employee’s eligibility for leave. Initially, the department has proposed that the time for employers to send out eligibility and designation notices be extended from two business days to five business days. Moreover, if an employer deems an employee’s medical certification to be incomplete or insufficient, the employer should return it to the employee, while specifying in writing what information is lacking and giving the employee seven days within which to cure any stated deficiency.

The Labor Department has also proposed a revised medical certification form to replace the one currently used by employers when seeking certification from an employee’s health care provider. The new proposed form provides for more specific information and permits, but does not require the health care provider to provide the employee’s condition and diagnosis � two pieces of information that are presently lacking from the current medical certification form.

The proposed regulations also address the employer’s right to obtain re-certification of the employee’s condition, particularly where the original certification states that the condition will be for an extended duration or, perhaps, for a lifetime. This would, of course, be most relevant to an employee’s request for intermittent leave. The department has proposed that an employer may obtain re-certifications every six months under these circumstances.

In addition to the revisions to the existent regulations, the department has proposed regulations specifically directed to the military family leave amendments recently enacted. The act is specifically dependent upon regulations from the secretary of labor, and in this light, the department is seeking public comment on issues arising therein.

It would be impossible to fully address all of the proposed regulations and proposed rule making in a single article, inasmuch as the department’s notice is more than 400 pages long. It can be anticipated, however, that as the proverb says, “Where one door closes, another opens.” While the proposed regulations, if fully implemented, will certainly clarify some questions under the act, they will only raise others, which will likely be the subject of future litigation and, undoubtedly, more articles. •

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.