Family and Medical Leave Act

On February 11, 2008, the U.S. Department of Labor ("DOL") published a proposal to update its regulations under the 15-year-old Family and Medical Leave Act ("FMLA"). The DOL believes the proposed regulations will help workers and their employers better understand their rights and responsibilities. The proposed regulations would amend key provisions of the FMLA rules, including:

employer and employee notice requirements;

nonconsecutive periods of service in determining who is an "eligible employee";

the "two-visit" treatment requirement in the definition of the term "continuing treatment";

fitness-for-duty certification and recertification;

privacy requirements pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and contact with healthcare providers;

substitution of paid leave;

joint employers; and

the employee eligibility requirement that there be 50 employees within 75 miles.

The DOL also proposes an added provision allowing employers to contact healthcare providers to discern whether an employee's absence patterns are consistent with the employee's qualifying medical condition.

The DOL has opened a 60-day comment period on the proposal. Following the comment period, the DOL will have the remainder of the year to finalize the changes. Employers may access proposal via the internet at this link.