Outten & Golden: Empowering Employees in the Workplace

Changes Proposed to FMLA Would Hurt Workers

April 11th, 2008 | Paula Brantner

As discussed in a prior post, the Department of Labor has proposed changes to the FMLA in a last-ditch effort to satisfy business interests before there is a change in administrations, which could, depending on who is elected, stall business-friendly changes for a considerable period of time. Here’s a look at some of the specific changes proposed.


Limiting a workers’ ability to use their accrued paid leave to cover their unpaid FMLA leave.

Because FMLA leave is unpaid, many workers who otherwise could not afford to take leave rely on the ability to use their paid leave, such as sick leave, vacation leave, and paid time off (PTO). Being unable to afford to take unpaid leave is the most common reason that workers who qualify for and need FMLA leave do not take it. Some workers are already encountering problems utilizing accumulated leave to maintain their family’s financial stability during a time of need, with employers forcing their employees to jump through all the hoops to qualify for FMLA leave, or attempting to impose notice restrictions not required by the FMLA. Employee advocates oppose changes that would make it even more difficult for employees to use accumulated paid leave while simultaneously qualifying for FMLA leave.

Increasing workers’ requirements for providing notice when they need to take leave.

Under the proposed regulations, workers will have less time to provide notice and will be required to provide their employer more information than previously required when requesting leave. Workers who fail to meet these requirements could have their FMLA leave delayed or denied.

The current notice requirements ensure that employees in a situation where their first priority is their own health or a family member’s health can still benefit from FMLA protection. In some situations, it is simply not realistic to expect an employee to provide notice in advance of their absence. The current requirements reflect this reality, while the proposed changes would cause employees with a legitimate FMLA-qualifying need to be denied leave and even face disciplinary action, due to a failure to comply with the notice requirements.

Changing communications provisions which would allow employers to speak directly to workers’ health care providers and allowing them to do so in some circumstances without a release of confidentiality from the worker.

Employers now must follow a two-step process to clarify information that is part of the workers’ FMLA medical certification. Employers first must obtain the employee’s permission to talk to his or her doctor, then must have a medical professional talk directly with the employee’s doctor. The proposed guidelines would allow an employer to contact an employee’s health care provider directly after obtaining permission from the employee. Permission from the employee is not required if the employer is attempting to verify that the employee actually had the doctor fill out the medical certification.

The proposed change that would allow employers without medical training to directly contact an employee’s health care provider is one that provoked significant outrage among workers. In a number of instances, employers have tried to breach the current requirement that communication occur only between medical providers, or have used impermissible means to try to obtain medical information. The proposed changes would further facilitate direct employer contact without permission.

Workers are also very concerned about the consequences of allowing their employers access to sensitive and confidential medical information. Those with mental illnesses and medical conditions which carry a social stigma and/or raise questions about an employee’s ability to do the job fear even more difficulty with their employers and coworkers if this provision is altered. Some employees are already using personal leave, rather than attempting to qualify for FMLA leave, in order to prevent their employers from delving into their medical history.

The current requirement should stand, as allowing non-medical personnel to make inquiries of an employee’s doctor will lead to widespread violation of employee privacy, and even more disputes between employees and employers over whether leave is medically necessary.

Requiring more frequent medical visits for workers and/or additional medical certifications from their health care providers.

It is already burdensome in some cases for employees to obtain the required medical certification, especially for employees with chronic, lifelong illnesses where the diagnosis and severity do not significantly change from year to year. Increasing the frequency with which employees must visit their doctors and provide medical certification will only make it more costly and burdensome for employees to comply with the requirements to obtain FMLA leave. Instances where a worker’s condition doesn’t change from year to year, yet the FMLA-required certifications are rejected, are relatively common, as are instances where additional medical visits are already being required, due to a dispute over the language used in the employee’s medical certification.

We live in an era of skyrocketing medical costs, increased co-pays, and a growing number of employees without health insurance. Making employees visit their doctors twice a year, when such visits may not be medically necessary nor logically required, will make it even harder for employees entitled to FMLA leave to actually use it.

Altering current rules about FMLA leave and employers’ attendance policies to count FMLA leave against perfect attendance awards.

This proposed change would penalize employees for FMLA-related absences which are not any fault of their own, and cost employees money in those workplaces which provide a financial incentive for attendance awards. Some are already reporting conflicts with attendance policies when they use approved FMLA leave. However, those employees whose employers follow current law can rest assured their absences will not be used against them.


The comment period has now ended, as of April 11, with thousands of organizations and individual employees submitting comments. Now the ball is in the Department of Labor’s court, with the rights of employees hanging in the balance. Will the scale tip to favor employers’ interests? It would hardly be a surprise. However, thus far in this Administration, no significant changes have been successful, so it will be interesting to see whether the internal and external forces which have staved off changes over the last several years will be strong enough to prevail before the November election.

[Please note: some of this post was excerpted from comments I prepared on behalf of Working America that were submitted to the Department of Labor. However, any opinions represented in this blog posting are my own, and do not represent Working America, my current employer.]

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