The following summarizes the changes to the FMLA regulations proposed by the Department of Labor on February 11, 2008:

Employee Eligibility Issues

     12 Month Employment Requirement.  Under the statute, an employee must be employed by an employer for at least 12 months to be eligible for FMLA leave and must have worked at least 1250 hours in the 12 months immediately preceding the qualifying event.  Under current regulations, this 12 month period need not be consecutive and, theoretically, the 12 month requirement could be met by past employment even if it were many years ago.  Under the proposal, employers need only consider the 5 years before an employee's break in service, with exceptions for military service or a written agreement to rehire the employee after a longer break in service. 

     Serious Health Conditions.  This part of the regulations, in large part, remains unchanged.  The DOL proposes, however, to clarify that when a serious health condition is based on two visits to a health care provider, those visits must occur within 30 days of the beginning of the period of incapacity unless extenuating circumstances exist.

     Chronic Serious Health Conditions.  The proposed rules would require that the "periodic" treatment for a chronic serious health condition take place at least two times a year. 

Employee Notice Requirements

     Employees would be required to give notice of the need for unforeseeable leave "promptly," which usually will be before the start of their scheduled shift. 

Medical Certification Procedures

     The new regulations will have a new form that is geared toward helping employers gain more useful information about health conditions. 

     Employers will be allowed to contact health care providers to authenticate a medical certification without an employee's permission and will also be allowed to deal directly with health care providers to clarify medical certifications subject to HIPAA's privacy rule.  Employers will also be allowed to obtain medical certifications and recertifications more frequently. 

There are many more topics of concerns addressed in the new regulations.  We will be discussing and highlighting the most significant in our upcoming webinars.  We will host one on February 15, 2008 at 2:00 p.m., cst and again on February 21, 2008, at 2:00 p.m.  The cost is $100.00 per phone line.  If you wish to attend, please contact Megan Lehman at mlehman@watkinsludlam.com.