DOL Speeds Up Plans to Seek Comments on Improving the FMLA

 

Allen Smith, J.D. By Allen Smith, J.D. November 21, 2019
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​The U.S. Department of Labor (DOL) may seek comments sooner than originally planned on ways to improve the Family and Medical Leave Act (FMLA) to reduce administrative burdens on employers. Earlier this year, the DOL estimated it would request information on this topic in April 2020. But in this fall's regulatory agenda, issued Nov. 20, the DOL said it may seek comments on improving the FMLA as soon as this month.

The Society for Human Resource Management (SHRM) "is pleased that the review of the FMLA has been moved up," said Nancy Hammer, SHRM's vice president, regulatory and judicial engagement. "The FMLA has long held the status as the workplace law that yields the most questions from SHRM members. We look forward to working with the DOL to make improvements to FMLA implementation."

The DOL, Equal Employment Opportunity Commission (EEOC) and other agencies also outlined expected next steps in the rulemaking process, including a new proposed rule in the coming months on who is a joint employer under equal employment opportunity laws. In addition, the DOL and National Labor Relations Board plan to issue soon final rules on who is a joint employer under the Fair Labor Standards Act and National Labor Relations Act, respectively.

The agencies must issue an agenda twice a year listing all regulations in the works. However, the estimated release dates of the regulatory items can change.

Intermittent Leave, Certification Can Be Challenging

The DOL should take a close look at the impact of intermittent FMLA leave on employers, said Jeff Nowak, an attorney with Littler in Chicago. "Intermittent leave lends itself to abuse," he added.

Michael Shetterly, an attorney with Ogletree Deakins in Greenville, S.C., said the way the regulations are now written allows some workers to try to convert their full-time jobs into permanent part-time jobs, even though that wasn't the intention of the law

Nowak said that the department should issue stronger language supporting employers' right to enforce call-in procedures. The DOL currently indicates that an employee need only identify an unusual circumstance to explain why he or she couldn't follow the procedure, which gives workers too much wiggle room, he stated.

Specialists should be required to complete employees' medical certification in some circumstances, such as when there are serious mental conditions, he said. A general practitioner may not be able to accurately diagnose such conditions.

Employers also would like greater flexibility to communicate with physicians to determine the extent of serious health conditions and the frequency and duration of absences. Right now, "employees can effectively stonewall" when employers seek that information, Nowak said.

He also would like to see more precise consequences for workers when they fail to turn in a medical certification.

Employers should be able to request second opinions when considering recertifications, Nowak suggested. Recertifications are permitted in limited circumstances, such as when an employee seeks an extension of leave, when there has been a significant change in the frequency and duration of leave, or if the employee seems to be misusing time off.

Nowak also said third opinions should be removed from the certification process when second opinions are conclusive. Second and third opinions are at the employers' expense.

The FMLA regulations state that employers can't regularly use the services of a health care provider furnishing a second opinion. "What does that mean?" asked Scott Macdonald, Esq., SHRM-SCP, a senior HR management consultant with The Human Resource Consortium in New Haven, Conn. He hopes for clarification from the DOL.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Other Rulemaking

Here are other rulemaking priorities from the DOL and the EEOC and their projected completion dates:

  • The EEOC is considering a new rule on pay data sorted by job category, race, ethnicity and sex to enforce Title VII of the Civil Rights Act of 1964. An Advance Notice of Proposed Rulemaking is currently anticipated in September 2020. This follows an announcement by the agency that it would drop its current pay-data requirement, as well as litigation over pay data.
  • The EEOC will address the interaction between the Americans with Disabilities Act and wellness programs in a proposed rule now tentatively slated for January 2020. Employers have been left in limbo without a rule since a court struck down a prior regulation from the agency.
  • The EEOC will explain in a proposed rule, expected next month, when an entity qualifies as a joint employer under federal equal employment opportunity laws, such as Title VII, the Equal Pay Act, the Age Discrimination in Employment Act and Americans with Disabilities Act.
  • The DOL may issue a final rule next month on who is a joint employer under the Fair Labor Standards Act.
  • The National Labor Relations Board also plans to finalize next month its rule on who is a joint employer under the National Labor Relations Act.
  • The board may issue a final rule on union elections this month.
  • A final rule on H-2A nonimmigrant visa programs, which is anticipated to result in an increase in the hiring of temporary agricultural workers, is now slated for publication by the DOL in April 2020. A proposed rule was issued in July.
  • The DOL anticipates issuing a final rule on apprenticeship programs in April 2020. The department issued a proposed rule in June. The rule would establish industry-recognized programs—customizable apprenticeship models that the DOL has called "a new pathway for the expansion of apprenticeships."
  • The DOL may issue a final rule as soon as this month on what constitutes a "regular rate" of pay, which is used to calculate overtime premiums under the Fair Labor Standards Act.
  • The DOL's Office of Federal Contract Compliance Programs plans to issue proposed revisions to its nondiscrimination and affirmative action regulations, perhaps this month.
  • U.S. Citizenship and Immigration Services plans to publish a proposed rule in September 2020 to improve the L‑1 visa program, which is for intracompany transfers.
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