An important new proposed change to the FMLA rules would modify the statute regarding what is called substitution of paid leave for employers in South Carolina.
This and a series of other proposed revisions will become effective after April 11, 2008. Employers are invited to comment until then. Click this link to do so, entering the keywords “Family and Medical Leave Act,” being sure to include the quotes. An employer’s contact information will be visible for public viewing.
A series of changes for employers are proposed in the new FMLA regulations, which were first announced by the U.S. Labor Department on February 11, 2008.
Another proposed change sounds less significant, but has been an issue with employers for some time. The revision would allow employers to count FMLA leave as part of an employee’s absentee record when deciding on “perfect attendance” awards. In the old regulations, FMLA leave could not be considered a work absence. However, both employers and coworkers objected that it was unfair when employees would get the awards and sometimes bonuses for perfect attendance even though those employees took the full 12 weeks of allotted FMLA leave.
Substitution of paid leave refers to a provision of the FMLA that says employers may require employees to use paid accrued sick time concurrently with their FMLA leave, and that employees may do so if they wish. The changes would broaden the rules.
Under the new proposed regulations, employers may require workers to use all of their accrued paid time off, including sick time, vacation time, and personal leave, as part of FMLA leave. Employees are permitted to do so also if they wish, and may use paid time off (PTO).
Using an example to clarify this, if employee Ron has accumulated 2 weeks of sick time, 5 weeks of vacation time, and 3 weeks of personal leave, he has a total of 10 weeks of paid time off coming. The old regulations say Ron could only use the 2 weeks of sick time as part of FMLA. The proposed changes would allow him to take the entire 10 weeks as part of FMLA.
More South Carolina FMLA Changes
The U.S. Department of Labor is proposing a series of changes to the FMLA rules that will go into effect April 11, 2008, the day they are published as final. Until that date, there will be a period of public comment.
Once the regulations are published they carry the force of law, and all employers must abide by them.
“It’s time to update these regulations,” said Victoria Lipnic of the Labor Department, “to reflect court decisions, clear up ambiguities, and address issues that weren’t contemplated when the regulations were first issued in 1995.”
Some of the proposed revisions are:
- Changes to the “fitness for duty” certification to return to the job
- Changes to the medical certification procedure
- Light duty will not count as FMLA leave
- An employee’s right to settle an FMLA case out of court
- The “Ragdsdale decision” on penalties by employers
- How often an employee on FMLA must visit a healthcare professional
- Allowing employers to withhold “Perfect Attendance Awards” to workers who have taken FMLA leave
- Refinement of the definition of “serious health condition”
- Allowing the substitution of paid leave under certain circumstances
There are several proposed regulation changes that touch on the idea of an employee’s “serious health condition” and medically certifying the condition.
FMLA allows an employee to take up to 12 weeks of unpaid leave annually if the worker or a member of the immediate family has a “serious medical condition.” The Labor Department allows employers to demand that the “serious medical condition” be certified by a healthcare professional. Sometimes employers may also require a second or third opinion, provided the employer pays for them.
The original 6 definitions of “serious medical condition” would be kept in the new regulations. There is guidance of 2 terms, however. One definition includes 3 days of consecutive incapacity and “two visits to a healthcare provider. But under the current rules “two visits” remains undefined, and could be 2 visits in a month or a year. The new rules would make it 2 visits within 30 days of incapacity.
