The Employment Law Group of Prince Lobel today submitted comments and questions collected from clients to the U.S. Department of Labor (DOL) in response to that agency’s request for comments on the Family and Medical Leave Act (FMLA). The DOL is considering changing its regulations to make it easier for employers to facilitate the FMLA’s stated goal of providing reasonable leave to employees by resolving ambiguities and providing clarification in the current regulations. The comments that were submitted focused on the areas of FMLA administration which present the greatest source of challenge for employers. Among the comments and questions submitted to the DOL were:
- How does the employer balance its legitimate need for detailed documentation of an employee’s prognosis for planning purposes, against the employee’s privacy rights. This question is particularly relevant because oftentimes documentation from healthcare providers is ambiguous or vague (i.e. “unable at this time to determine when the employee can return to work”). Employers run the risk of provoking a claim of harassment or discrimination claim by asking for more documentation or clarification, even though it needs to make long range plans.
- When an employee is required to go to follow-up appointments with a health care provider, is it reasonable for the employer to expect the employee to be present at work before and after the appointment? Can the employer request documentation on how long such appointments are expected to take?
- If, prior to the expiration of the FMLA leave period, the employee or health care provider suggests that there is a good chance that the employee may not be able to return to work, but does not definitively state that the employee will not return, (1) may the employer begin making plans to replace the employee, (2) must the employer actually wait until the end of the leave period to find out whether the employee returns to work, and (3) during the leave period, can the employer seek periodic updates on whether the employee anticipates returning to work at the conclusion of the leave period?
For questions about the FMLA regulations, please Joseph Edwards at jedwards@princelobel.com