There Are Six Big FMLA Changes Coming Soon!

According to the Department of Labor, there are six changes that will impact the Family Medical Leave Act. They are not in effect yet but could be by the end of the year and are said to be favorable to human resources.

1. Right now the law is vague about when employers are put on notice that an employee needs FMLA. That’s why sometimes when an employee has been out for a period of time the employer has to consider making the leave (once they find out) retroactive to the original date that the employee went out. The new regulations requires that the employee give the employer notice that they’re unable to work and must go to a healthcare provider and provide an estimated duration of the leave.

2. Under current law, employers must tell employees within two days that the time off will be counted toward FMLA. The new regs gives the employer five days which is more reasonable.

3. The definition of a “serious health condition” indicates that to qualify for FMLA, an employee or family member, must be incapacitated for more than three consecutive days and make at least two visits to a healthcare provider or one visit plus continuing treatment. The proposed new regs require those two visits to occur within thirty 30 days of when the period of incapacity starts.

4. Employees are eligible for leave if they have worked for the company for at least twelve months even if the 12 months were not consecutive. The current law does not give a time frame for how far back the period of employment was. Now it has a cap of five years.

5. This one is HUGE!! Right now employers are forbidden from directly contacting the employee’s doctor. Under the proposed regs an employer can now contact the healthcare provider in order to clarify an “insufficient” certification after giving the employee the opportunity to do so. Just remember you are not calling to clarify the nature of the illness. You are calling to confirm that the nature of the illness is “serious” enough to qualify the employee for a leave under the FMLA.

6. Under the current laws employees can’t waive their right to sue for an FMLA violation such as those found in severance agreements. Under the new law the waiver will be permitted.

Ok, now remember these regs are not effective today, but will be shortly. I will post a confirmation as soon as we get the word.