If you look at the state Department of Labor website, you’ll find a notation about “proposed amended FMLA regulations” that have not yet been put into place. It adds “approval pending”.
As the modern saying goes: Don’t believe everything you read on the Internet.
If you’ve been following the saga, the proposed regulations from the spring were sent back for an additional review. But having made tweaks to the regulations, they are now ready to be relied upon.
My colleagues and I are working on a more thorough update in the next week or so but in the interim, I wanted to highlight a few items I found interesting:
- The guidance now recognizes that an employee who visits a doctor through “telemedicine” is getting treatment from a healthcare provider — something that acknowledges that big changes that have occurred in medicine during the pandemic.
- The new regulations delete this reference in the prior regulations: “Conditions for which cosmetic treatments are administered (such as most treatments for
acne or plastic surgery) are not “serious health conditions” unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA
leave.” In its place is a notation that any condition that otherwise meets the definition of a serious health condition is covered.
- What proof can an employer require to confirm a family relationship? Not much. For a direct family member, a simple statement verifying the relative is enough. For purposes of confirming that a person is an individual related to the employee by blood or affinity whose close association is equivalent to [family]… the employer may require a simple written statement, signed by the employee, describing and verifying that (1) the employee considers his or her relationship to the individual to be equivalent to the relationship that one would have with either a spouse, sibling, son, daughter, grandparent, grandchild or parent, and (2) the relationship involves a significant personal bond.” While that seems to provide some clarity, the regulations add that an employer could question it at times. “An employer determination based on such employee statement shall be situation specific and governed by the circumstances of the individuals involved.” But lest you think that an employer can get more information, the regulations make it clear that an employer can’t request the employee provide more information than just the written statement.
Employment law practitioners should be mindful to now rely on these new regulations instead of the former ones.
There’s obviously much more in these regulations. If you have further interest, watch for the details in the next few days of our upcoming fall webinar series. It’ll be free for everyone and one session will cover everything you might’ve missed over the past year in laws and regulations.