DOL Releases Final Draft of Proposed FMLA Regulations

The following article was first published in Shipman & Goodwin LLP’s Employment Law Letter. It is reposted here with permission.

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For months, employers have been eagerly awaiting updated regulations that address the revisions to the Connecticut Family and Medical Leave Act. 

At last, on March 22, 2022, the Connecticut Department of Labor released its final proposed amended FMLA regulations, answering questions that had remained unanswered by the revised law. 

Indeed, the proposed regulations amend several key provisions of the prior state FMLA regulations. Here are the key highlights for employers:

Changes to Coverage, Eligibility

Under the old regulations and law, an employee was required to work for 12 months before becoming eligible for Connecticut FMLA leave. 

Under the proposed regulations, this timeframe has been significantly decreased to three consecutive months. 

Notably, the term “employee” has been narrowed to one who is engaged in services with an employer in the state of Connecticut and an “employer” has been expanded to any Connecticut employer that employs at least one employee, rather than 75.

Covered family members now include spouses, siblings, parents, grandparents, and grandchildren, as well as those related by blood or affinity.

Covered family members—that is, those family members that an employee can seek leave to assist—now include spouses, siblings, parents, grandparents and grandchildren, as well as individuals related by blood or affinity whose close relationship with the employee is equivalent to a relationship with one of these family members, and coverage for a son or daughter is no longer limited to the age of 18.

Instead, the proposed regulations extend coverage to a son or daughter of any age.

Because the old regulations were written before the passage of Connecticut’s paid leave laws, the old regulations did not address what it means for an employee to substitute accrued paid leave for unpaid Connecticut FMLA leave, or whether an employee could retain a certain amount of paid leave. 

The proposed regulations allow an employee to retain up to two weeks of accrued unpaid leave, and define the term “substitute” to mean that the accrued paid leave provided by the employer runs concurrently with the unpaid FMLA leave.

Evidence Requirements

Employers may require employees seeking leave for an individual equivalent to a family member to provide certain evidence.

The old regulations did not address the types of evidence an employer could request an employee seeking leave to care for an individual equivalent to a family member. 

The proposed regulations provide that an employer may require an employee seeking leave for such a person to provide a written statement, signed by the employee, describing and verifying that the employee considers his or her relationship with that person to be equivalent to that of one with a family member (i.e., the relationship must involve a “significant personal bond”).

Additional Leave for Incapacitation During Pregnancy

The proposed regulations change the limitation on the total amount of leave an employee may take from 16 weeks in a 24-month period, to 12 weeks during any 12-month period. 

Under the old regulations, an employee was not entitled to any additional leave for health conditions during pregnancy. 

Under the proposed regulations, an employee with a serious health condition resulting in a period of incapacity during pregnancy is entitled to take an additional two weeks of leave during the applicable 12-month period.

Requalification for Benefits

The old regulations did not address whether an employer could require an employee returning from leave to requalify for any benefits enjoyed prior to going on leave, whereas the proposed regulations make clear that an employer may not require an employee to requalify for benefits upon his or her return to employment.

Broader Notification Requirements

Under the old regulations, an employer only had to notify eligible employees of their leave rights.

Under the proposed regulations, an employer must distribute a notice or policy to all employees concerning the Connecticut FMLA. 

An employer must notify an employee of thier eligibility to take leave no later than five business days after receiving a request.

Additionally, an employer must notify an employee of their eligibility to take FMLA leave no later than five business days after receiving a request to take such leave, or learning that the employee is taking leave for a qualifying reason.

 At the time notification is made, an employer that requires a fitness-for-duty certification to return to employment must convey that obligation to the employee, including whether the employee must obtain an evaluation from a health care provider before returning to work.

Recertification Requests

Under the old regulations, an employer could not require an employee to provide recertification more than once in a 30-day period. 

Under the proposed regulations, employers may request one re-certification in less than 30 days if the (1) employee requests an extension of leave, (2) circumstances described by the prior certification have changed significantly, or (3) employer discovers information that calls into question the employee’s proffered reason for the absence or the validity of the certification.

Employee Legal Redress

An employee alleging a violation of their FMLA rights under the old regulations was required to first bring a claim before the labor department before filing suit in court. 

The proposed regulations allow an employee to file suit in court within 180 days of the alleged violation without having to first file an administrative complaint with DOL.

 An employee who elects to file an administrative complaint at the outset will have 90 days after the date of dismissal and release of jurisdiction to subsequently file an action in court.

While these proposed amendments are still pending approval, it’s unlikely we’ll see many significant changes.

While these proposed amendments are still pending approval, it’s unlikely that we’ll see many significant changes to these regulations. 

Therefore, employers should review existing policies and practices to ensure compliance with these regulatory changes.  

While DOL certainly provides a useful base of knowledge for employers, employers should consult with their employment counsel for more information relevant to these proposed amendments and how these regulations impact their specific business. 

As a reminder, an employer covered under the FMLA does not include a municipality, a local or regional board of education, or a nonpublic elementary or secondary school.

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About the authors: Daniel Schwartz is a partner at Shipman & Goodwin LLP, representing employers in various employment law matters. Rauchell Beckford-Anderson is an associate at Shipman & Goodwin LLP and a member of the firm’s employer defense and labor relations practice group. Julie Jaquays is an associate at Shipman & Goodwin LLP and a member of the firm’s school law practice group.