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LABOR & EMPLOYMENT LAW — 2/20/08

Labor Department to publish proposed FMLA rule changes

The US Department of Labor's Wage and Hour Division has published its long-anticipated revisions to the Family and Medical Leave Act (FMLA) regulations in the February 11, 2008 edition of the Federal Register (73 FR 7876-8001). The proposed regulations would amend key provisions of the FMLA rules, including:

• employer and employee notice requirements;

• nonconsecutive periods of service in determining "eligible employee;"

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

• fitness-for-duty certification and recertification;

• HIPAA privacy requirements and contact with healthcare providers;

• substitution of paid leave;

• joint employers and the 50-employees-within-75-miles requirement;

• and, to address employer challenges in administering intermittent leave, 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 proposed rules also include a revised Certification of Health Care Provider form, notice poster revisions, and increased civil penalties for violating notice posting requirements. "It's time to update these regulations to reflect court decisions, clear up ambiguities and address issues that weren't contemplated when the regulations were first issued in 1995," said Victoria A. Lipnic, assistant secretary for the Employment Standards Administration. "This proposal is the result of 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."

The agency's Federal Register notice requests comments on the issues to be addressed in the final regulations regarding military family leave. The first-ever expansion of the FMLA was enacted on January 28, 2008, with enhanced leave rights for family members of uniformed service members. The proposed rule identifies the potential number of covered and eligible workers who may be impacted by the new military family leave provisions. In addition to the newly enhanced leave rights for family members of service members noted above, under the FMLA employers with 50 or more employees must grant workers up to 12 weeks of unpaid leave for the birth or adoption of a child, to care for an ailing family member or to take medical leave from work for a serious medical condition.

Meanwhile, the National Partnership for Women & Families expressed its concern over potential employee privacy issues raised by the proposed rules. in a February 8 release, it stated, "if it is true that the new regulations will give employers permission to seek information from their employees' doctors directly, workers' privacy rights could be in real danger. Workers should not have to choose between allowing their employers to violate their privacy or losing leave they urgently need."

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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