The Department of Labor (DOL) issued proposed changes to the FMLA regulations on February 11, 2008. There will be a two-month public comment period, during which individuals and groups can tell the DOL, in writing, what they think of the proposed regulations. Once the comment period ends on April 11, the DOL will review the comments and release final regulations.

The proposed regulations don't go as far as some employer groups hoped -- and some employee advocates feared. For example, the proposed rules make only minor changes to the definition of a "serious health condition," and continue to allow employees to take intermittent leave in the smallest increments tracked by the employer's timekeeping system.

The most significant changes appear to be to the notice and medical certification portions of the regulations.

Notice

Here are some of the changes proposed to the FMLA's notice requirements:

• Employers now have to provide more information when employees request leave and when an employer designates time off as FMLA leave; the time limit for providing this information has been extended from two days to five.

• Employees still don’t have to say that they are requesting “FMLA leave,” but they can’t just call in “sick.” Employees must indicate that they have a condition that renders them unable to perform their job functions (or renders a family member unable to perform daily activities); how long they expect to be out; and whether the employee or a family member is getting care from a health care provider.

• Employees must comply with the employer’s usual notice and procedure requirements for taking time off (for example, calling in) absent unusual circumstances. If the employee could have followed the employer’s rules but didn’t, FMLA leave can be delayed or denied.

• Employees still have to give 30-days’ notice of foreseeable leave, but now an employee who doesn’t give this much notice must explain why.

Medical Certifications

Here are some of the proposed modifications to the medical certification process, by which the employee presents written proof that the employee or a family member has a serious health condition.

• Employers would be allowed to contact health care providers directly to clarify and authenticate the certification.

• If an employer finds the certification to be incomplete or insufficient, the employer must tell the employee, in writing, what additional information is necessary and give the employee at least seven days to fix it.

• Although the proposed rules say that employees can’t be required to waive their right to privacy in their medical records, they also say that FMLA leave can be denied if the certification is inadequate (after the employee has had an opportunity to fix it) and the employer can’t straighten things out by talking to the health care provider.

What's Next

The proposed regulations don't include any rules on the new military family leave provisions of the FMLA. Instead, the DOL raised a number of questions about how these new rights should be implemented and asked for public comment.

All this means that the DOL will probably have plenty of reading to do after April 11, when the comment period ends. Once final regulations are drafted, Congress will have the chance to weigh in on -- and potentially, disapprove of -- the final regulations. In fact, a couple of Senators have already indicated that they might hold hearings on the new rules. Whether and when the regulations will actually be finalized, given that we are in a Congressional and Presidential election year, is anyone's guess.

• The Essential Guide to Family & Medical Leave