In its 2002 Ragsdale decision, the U.S. Supreme Court invalidated the portion of the Department of Labor’s Family and Medical Leave Act regulations that require employers to notify employees that they are using their FMLA time for the leave to count against the 12-week entitlement. In its new proposed FMLA rules, DOL attempts to incorporate the Ragsdale opinion as well as other federal court decisions that affect how employers and employees provide notice and receive medical certification of the need for FMLA leave. These changes include:
1. DOL proposes that employer notice requirements be split into two phases: eligibility notice and designation notice. When an employee requests leave, he or she must be given notice of their general eligibility under the FMLA leave within five business days. Once the employer has sufficient information to determine whether the specific request qualifies for FMLA leave, it will have five business days (up from two days in the current rules) to notify the employee that the leave has been designated as FMLA leave. As per Ragsdale, if the employer fails to provide notice, the leave still counts unless the employee demonstrates prejudice. The designation notice will need to be resent every 30 days of leave, and tell employees how much leave has been taken, and how much remains.
2. The rules change how employers communicate with employees about FMLA rights. Employer notices may be provided via e-mail. If the FMLA policy is not contained in the employee handbook, it will have to be redistributed to employees on an annual basis.
3. If employees cannot provide the current 30 days advance notice of the need for FMLA leave, absent unusual circumstances, they must do so at the latest by the start of that missed shift. Employees can be required to follow regular call-in procedures absent unusual medical circumstances.
4. If an employee provides an incomplete response to a medical certification request, they will have up to seven business days to correct the deficiency. The medical certification form will be changed to make the requested information more clear and tied to employee job functions. Importantly, DOL proposes removing the prohibition on the employer directly contacting the employee’s healthcare provider for purposes of authenticating and clarifying information provided on the form.
5. In all cases, employers will be entitled to medical recertification for intermittent leave requests every six months, even if there is no reason to believe medical circumstances have changed.
6. Employers will be entitled to more detailed return-to-work certifications, including certifications tied to job functions.
Until the new rules are finalized, employers should not change their current FMLA notification and certification procedures.