A mountain of changes, but which are the big ones?
The full proposal runs to well over 200 pages, containing dozens and dozens of changes. We asked FMLA expert Frank Alvarez, a partner at Jackson Lewis and national coordinator of thefirm's Disability, Leave and Health Management Group, to guide us through the maze. Here are his nominations for the most helpful changes that DOL has proposed:

1) If an employee merely calls in "sick," that is not enough to put the employer on notice of the potential need for FMLA leave. Alvarez says, "Employers are not mind readers," noting that Jackson Lewis provided comments especially on that regulation, from which DOL eventually quoted in the preamble to the proposal. Employers need more information from any employee who feels that he or she needs leave.

2) Where an employee can foresee the need for leave but fails to notify the employer as required, employers will have more leeway to deny the leave.

3) When an employee is using intermittent leave to cope with a chronic serious health condition, so long as there is no medical emergency, he or she will need to give notice of pending absence by following the employer's standard call-in procedures used for all unscheduled absences. Currently, someone using intermittent leave can simply take the leave and then designate it as FMLA-protected within the following 2 days.

Alvarez comments that currently employees have little accountability, and the changes are likely to lead to greater shared responsibility between employers and employees for reporting and managing leave.

4) Employer notices to be provided to employees will be separated into a two-step process. When the employee first requests leave, the employer will issue a notice of the individual's general eligibility for FMLA protection. Only after all paperwork, including adequate medical certification, of the particular leave is in hand will the employer notify the employee that it has been designated as FMLA-qualifying. Currently, both parties find the process of issuing a designation notice pending medical certification very confusing.

5) Further, employers will have more time to issue these notices: Currently they have 2 business days, but they will have 5. This change, says Alvarez, recognizes that communicating news of a phone call to a supervisor to the appropriate decision-making manager can take more than 2 days. In that vein, he comments, "Congress often seems to be profoundly naïve about the administrative burden on employers of FMLA--or perhaps biased against employers."

6) DOL's medical certification forms, currently inadequate, will be revised if the regs become final. What needs to be added, says Alvarez, is adequate information to help employers determine whether an employee's illness or injury represents a serious health condition and, if there may be a need for intermittent leave, how frequently and for how long.

7) The final regs will allow employers to contact an employee's healthcare provider directly to clarify or probe the contents of the medical certification. Currently, the regs state that employers can contact a provider only indirectly--through a go-between who is another healthcare provider retained by the employer. Says Alvarez, "That regulation was notable in that it was only followed in the breach; it was absolutely unworkable."

Employers have found it almost impossible to identify providers willing to perform this service, he notes. "The concerns reflected in that regulation about employers invading employee privacy are, I think, exaggerated. The vast majority of employers with whom we work have no desire for more information than they need to administer FMLA. More information would open them up to more legal exposure."

8) Finally, the proposal recognizes the overlap between FMLA and the Americans with Disabilities Act (ADA), Alvarez points out. For example, where a serious health condition may also be a disability, employers will be able to follow ADA procedures in discussions with the employee. Currently, they are concerned that if they mention a reasonable accommodation that would preclude the need for leave, they risk violating FMLA.

We asked Alvarez why DOL refused to increase the minimum increment in which employees may use intermittent leave--an administrative headache for employers, who had requested a block of hours, a half-day, or even 1 hour. Based on interim reports from DOL, he says, the agency tried hard to strike a balance between employer and employee rights. About the minimum increment (the smallest that an employer tracks for its payroll system), DOL said, in effect, 'We feel your pain, but it's up to Congress to make that change.' Further, Alvarez observes, "Right now, that's not likely to happen. Some members of Congress want instead to expand FMLA, for example to organizations with only 25 employees." [In fact, three Democratic senators harshly criticized the proposed new regs for "chipping away" the current law.]

When might the changes be final? DOL has allowed for another 60-day comment period, with the clock having started around February 11, and has also vowed to implement the regs during President George Bush's administration.