4/16/08: NTEU National President Colleen Kelley has taken sharp issue with proposed administration changes to Family and Medical Leave Act (FMLA) rules that would make it much more difficult for working people to secure their rights under this congressionally-mandated benefit.

A number of the proposed Department of Labor (DOL) rules changes “would inevitably deprive employees of the medical and family leave authorized by Congress,” said Kelley.

NTEU offered a variety of changes to the proposals in comments submitted in response to changes DOL wants to make impacting private sector employees under FMLA. Although the Office of Personnel Management administers FMLA for federal employees, its regulations must “to the extent appropriate, be consistent with” DOL regulations.

“Several of the proposed regulatory changes would erect needless barriers for employees requesting to use the FMLA leave to which they are entitled,” Kelley said — even to the extent, she added, of proposing “to hold employees to FMLA’s more burdensome procedures even where their employer has signed a collective bargaining agreement to streamline the process.”

These are among NTEU’s specific objections to the DOL proposals:

• A proposed new definition of “continuous treatment” which would require for the first time that an employee visit a health care provider twice within the first 30 days of incapacitation;
• Language changes in connection with caring for an adult son or daughter that, Kelley said, “would place another enormous obstacle in the path of employees trying to use the leave Congress has provided”;
• A “needless and burdensome requirement” in the form of a sworn, notarized statement for attesting to family relationship, rather than the current regulation calling for a simple statement from an employee;
• Although health care providers already are required to certify an employee as incapacitated, a new provision would require such providers to specify what functions of an employee’s position the person is unable to perform;
• Language impacting the timetable for providing missing or incomplete medical certification, as well as proposing to allow employers—as opposed to their staff doctors—to contact an employee’s health care provider; and other matters.

This latter issue addresses serious concerns about the release of employee medical information through the use of a generic form under the Health Insurance Portability and Accountability Act (HIPAA) privacy rule. Kelley noted that HIPAA authorization “inevitably sanctions disclosure of much more medical information” than allowed by FMLA.

The signature of an employee or their family member on a HIPAA form for purposes of obtaining certification under FMLA, Kelley points out, “merely authorizes a health care provider to disclose the limited information FMLA allows employers” to obtain for purposes of confirming a serious health condition. “It must not be used as an excuse for opening the door to direct contact between employers and their employees’ health care providers,” she said.