New FMLA regs are in the final stages of becoming official and could go into effect by the end of the month. The good news: Many of the changes will actually help HR.

The Department of Labor released the rule changes in February and accepted comments from the public until April.

On October 20, the DOL sent the regs to the Office of Management and Budget (OMB) for final approval. If the OMB approves, the regs could be added to the Federal Register by the end of the month.

What can HR expect? Here are six substantial changes the DOL proposed in February:

1. Notice from employees — The law is vague about when employers are put on notice that an employee needs FMLA. Right now, all that’s clear is that employees don’t need to specifically mention FMLA. The proposed regs give some clarification: Employees’ notices must indicate they’re unable to work and they plan to visit a healthcare provider, and they must provide an estimated duration of the absence.
2. Notice to employees — Right now, employers have to tell employees that time off will be counted as FMLA within two days of learning about the qualifying condition. Under the new regs, employers would have five days.
3. Definition of “serious health condition” — 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 regs require those two visits to occur within 30 days of when the period of incapacity starts. Also, to get leave for a chronic condition, the employee or family member must make at least two doctor visits annually.
4. Eligibility standards — Employees are eligible for leave if they’ve worked for the company for at least 12 months — even if the 12 months weren’t consecutive. The current rules don’t say how long employees can go back to add up periods of service. Under the proposed regs, employers won’t need to count any time that occurred before a break in service of more than five years.
   
5. Contact with healthcare providers — Right now, employers are forbidden from directly contacting an employee’s doctor. But under the proposed regs, companies may do so in order to clarify an insufficient certification (after giving the employee a chance to correct the problem).
6. Release of claims — Employees can’t waive their right to sue for an FMLA violation. The courts haven’t agreed on whether that only refers to future FMLA claims, or if it also includes retroactive waivers, such as those found in severance agreements. Under the DOL’s proposal, the latter type of waiver will be allowed.

We’ll keep you posted on the changes when the regs become official.

Tags: Department of Labor, DOL, FMLA, OMB, proposed regulations