Human Resources: Federal Budget Agency Criticizes FMLA Regulations On ´Serious Health Condition' and Intermittent Leave

The federal Office of Management and Budget (OMB) recently echoed the criticisms of employer groups and individuals who have argued that several of the U.S. Department of Labor (DOL) regulations implementing the Family and Medical Leave Act (FMLA) should be overhauled.

OMB is an executive-branch agency created to help the president oversee the preparation of the federal budget and to supervise its administration in executive branch agencies like the DOL. OMB ensures that agency reports, rules, testimony and proposed legislation are consistent with the president´s budget and with administration policies.

In a report OMB issued in December, the agency agreed with employers that the following regulations make the FMLA confusing and burdensome to administer:

- 29 C.F.R. Â§825.114(2), defining "serious health condition";

- 29 C.F.R. Â§825.203(d), allowing employees to take FMLA leave in increments;

- 29 C.F.R. Â§825.208, stipulating that employees are not on FMLA leave until the employer has specified that the time off is FMLA leave; and

- 29 C.F.R. Â§825.300-.311 and Â§825.500, requiring detailed record keeping and notification of employees by employers.

The provisions identified in the report have been the most hotly debated FMLA issues since the regulations were written. Indeed, the U.S. Congress has considered legislation to change them. Still, the regulations remain unaltered.

To prepare its report, OMB collected comments on a wide variety of regulations administered by several federal agencies - rules, it said, "That if rescinded or changed would increase public welfare by either reducing costs or increasing benefits."

Employer Designation Of Leave: Too Much?
The FMLA regulation employers most love to hate may be 29 C.F.R. Â§825.208. Under that rule, an employee´s 12 weeks of job-protected leave do not begin until the employer has informed the employee that he or she is on FMLA leave. Should the employer never specifically authorize the leave under the FMLA, another 12 weeks of time off would be owed the employee, according to DOL regulations.

Employer groups and several courts of law have expressed the opinion that the DOL exceeded its rulemaking authority when it wrote 29 C.F.R. Â§825.208. Congress intended employees to be entitled to 12 weeks of leave - no more and no less - critics say. When the DOL provided for more than 12 weeks´ leave in the event of employer failure to designate FMLA leave, the agency impermissibly expanded Congress´ intent and in effect rewrote the legislation. Because of its controversial nature, this issue reached the U.S. Supreme Court in the form of an appeal from Ragsdale v. Wolverine Worldwide, 218 F.3d 933 (8th Cir. 2000); cert. granted (U.S. June 25, 2001) (No. 00-6029).

That case concerned a worker whose employer gave her seven months off for treatment of cancer, but never told her she was on FMLA leave. After the seven months were up, the employee was still unable to return to her job, so she asked for an additional 12 weeks of leave under the FMLA. She sued when the employer refused and fired her.

The OMB´s proposed solution to the problem is to shift the burden of designating leave from employer to employee.

This could be done, the report suggests, by allowing employers to require employees to file written applications for FMLA when leave is foreseeable; and to also allow employers to require employees to provide them with oral notification on the date leave commences.

Some may argue that these two "solutions" are puzzling, however. There is nothing in the regulations to prevent employers from requiring employees to fill in an FMLA request form ahead of time when leave is foreseeable, and in fact many do so. And employees are required to tell their employer they need FMLA leave 30 days in advance if the leave is foreseeable, and "as soon as practicable" if it is not.

´Serious Health Condition´ Shouldn´t Be Brief Illness
The FMLA provides 12 weeks of leave for parenting or the treatment of the serious health condition of the employee or a family member. Under the act, a "serious health condition" is "an illness, injury, impairment or physical or mental condition" requiring either inpatient care, or continuing treatment by a health care provider.

Employers have found the definition of "serious health condition" somewhat elastic and expansive. The OMB report calls the definition "too broad resulting in inconsistent interpretations and employee abuse of the policy."

The DOL regulations stipulate that the FMLA is not meant to cover such conditions as cosmetic treatments, colds, the flu, earaches, upset stomachs, headaches, or routine dental work, unless medical complications develop. Still, some ambiguity remains when employers attempt to apply the regulations.

The OMB´s solution is to clarify in the regulation that "serious health condition" "does not include ´a short-term illness, injury, impairment, or condition for which treatment and recovery are very brief.´"

Intermittent Leave
The OMB report also suggests that there be limits on the amount of intermittent leave employees may take.

The FMLA does not require employees to take the 12 weeks of leave provided under the act all at once. If the situation or condition warrants it - and, in the case of the first year of a baby´s life, if the employer agrees - the leave may be taken in increments that add up to 12 weeks.

For example, an eligible employee who works a 40-hour workweek and qualifies for the maximum amount of FMLA leave is entitled to 480 hours off. If necessary for the treatment of the employee´s condition - for example, to receive chemotherapy for cancer, or treatment for episodic incidents in connection with asthma or diabetes - employees may take their 12 weeks intermittently in separate increments of days or even hours.

Under the current regulations, employees may take leave in the smallest units of time the employer´s payroll uses to compute absences. For example, if an employer docks employees when they are three minutes late, it must theoretically allow an employee to take three minutes of FMLA leave.

The regulation creates a burden for administrators by requiring them to track leave in fractions of an hour, OMB says, and suggests that the provision for intermittent leave be changed to require that FMLA leave be taken in at least half-day increments.

Record Keeping and Notification Requirements
Finally, the OMB states that current requirements for FMLA record keeping and notification are burdensome and ambiguous.

"Confusion about practices and procedures has led to conflict and litigation," the report states.

The solution to this problem should emerge after further surveys and studies are conducted, OMB says. The DOL should form a collaborative task force that includes employers and employees to assist the government in analyzing the problem, the report suggests.

It is unclear how much OMB´s criticisms of the FMLA rules will boost the efforts of Congress to clarify and update the provisions. The report is not in the form of legislation, although bills to effect these changes should be introduced in the coming session of Congress.

OMB´s report is available from: http://www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf