At the outset of its explanation of employee leave entitlement under the new proposed Family and Medical Leave rules, the Department of Labor states that it “has not been able to construct an alternative regulatory definition better than the objective test of more than three days capacity plus treatment.”  With this said, the rules make minor but important changes in the way leave entitlements are defined.  These changes include:

• The definition of “continuing treatment” by a health care provider means two or more visits within a 30-day period.  This avoids a situation where an employee denied FMLA leave returns to the doctor months after the initial treatment, and then claims retroactive entitlement to leave.
• For chronic medical conditions, “periodic” visits to the doctor for treatment mean at least twice per year.
• If leave is taken to care for a sick or injured family member, the eligible employee does not have to prove that he or she is the only family member available to provide care.
• If a paid holiday falls within an FMLA leave period, it is counted toward the leave entitlement if the employee took the entire week off.  If the leave is less than a week, the holiday is not counted against the leave entitlement.
• When an employee requests FMLA leave, the employer will be required to advise the employee of any additional requirements for use of paid leave, and confirm that unpaid FMLA leave is available even if the employee cannot meet the requirements for use of paid leave.
• DOL is clarifying rules regarding employee entitlement to bonuses while on FMLA leave.  An employee on leave will be subject to bonus reduction or elimination if he or she fails to achieve a specific goal upon which the bonus is established, even if that failure was due to the leave.  Employers will have an incentive to move from subjective to objective bonus measurement criteria.
• Employees eligible for FMLA leave who accept light duty work will not have such light duty counted against the 12-week FMLA entitlement.  Also, accepting light duty work will not affect the employee’s right to reinstatement to her normal job upon recovery.

Next week, we will review important changes to the notice and medical certification requirements.