Imagine my surprise and, admittedly, excitement, when a headline from one of my legal update services read, "DOL issues proposed FMLA regulations." Of course, what has been on my mind is the immediate application of the FMLA changes coming from the National Defense Authorization Act (see post below).
Alas, 'twas not to be. Although, again admittedly, I did get excited when I realized that the "proposed FMLA changes" meant the proposed changes to the regulations that DOL delivered to the Office of Management and Budget on January 25 (also discussed in the previous post).
So it is with great anticipation that I await for February 11--the day the proposed regulations are published in the Federal Register. Now, the Department of Labor apparently does not guard its pending publications with quite the same ferocious security as you saw with the Harry Potter installments, so there have been some "courtesy" copies of the regulations circulating among those in the labor and employment field. Preliminary review says that the regulations will touch upon changing the definition of "serious health condition" to the extent they recommend doing away with the current "objective test" and instead implement one of the six tests used by other regulatory agencies.
The proposed regulations will also make an attempt to clarify when an employer may make further inquiry into a medical certification when the certification is incomplete. In those cases, the proposed regulations recommend requiring the employer to state why the certification is incomplete and provide the employee with a specified amount of time to cure the deficiency, along with allowing the employer to make direct inquiry with the health care provider when the deficiency remains uncured. (Don't forget those HIPAA authorizations, ladies and gentlemen!)
Stay tuned--the proposed regulations should generate lots of commentary, thoughts, fans and detractors. All of us should get our FMLA fix over the next several months. (Okay, some of us more than others.)
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