The DOL’s decision to overhaul the regulations dates back to late 2006, when the DOL first issued a request for information (RFI) from the public on what needed to be changed in the regulations. In response to the RFI, the DOL received thousands of comments from employer and employee groups, as well as from the medical community. The DOL then held a stakeholders’ meeting to gather additional information on how to change the medical certification process. This culminated in the issuance of proposed revisions to the regulations in February 2008. Again, thousands of comments were submitted, and the DOL issued a detailed summary of the comments as part of the new regulations.
The new regulations change some of the former interpretations, and renumber and reorganize certain provisions. DOL has also revised some sections to include language clarifying several provisions that had been subject to conflicting court interpretations. In addition to reorganizing, modifying, and clarifying existing regulations, the DOL issued new regulations addressing the January 2008 servicemember amendment to the FMLA, which provides leave for qualifying exigencies for eligible family members of personnel on active duty and to care for ill or injured servicemembers.
In undertaking to update the regulations, the DOL was faced with the difficult task of balancing the conflicting interests of employers and employees, as well as the health care providers who are required to certify serious health conditions. Overall, the new regulations benefit employers more than they do employees, and impose additional obligations on health care providers.
There were many changes to the regulations and the following discussion does not address every change or clarification made to the regulations. Rather, we have selected what we believe are the most significant changes and/or clarifications for our clients, as they begin to review and revise their FMLA policies and procedures in order to bring them in compliance with the new regulations. For those interested in reading the new regulations and the DOL’s accompanying commentary, this information is available at (http://www.dol.gov/esa/whd/fmla/finalrule.htm ).