APWU: Proposed FMLA Regulations Threaten Medical Privacy, Other Protections

Shortly after agreeing to expand leave for military families, the Bush administration proposed new regulations that would weaken employees’ medical privacy protections and make it more difficult for workers to use leave under the Family and Medical Leave Act (FMLA). Regulations proposed by the Department of Labor on Feb. 11, 2008, have caused concern among unions.

  • Current regulations prohibit employers from making direct contact with an employee’s physician. The proposed rules would create exceptions to this prohibition.
  • Eligible employees would be required to re-certify lifelong or chronic conditions at least twice a year, regardless of the length of the certification issued by a healthcare provider. (Employees would have to bear the costs of the additional trips to the doctor.) Under current regulations, such certifications last up to a year.
  • Current regulation prohibit the disclosure of a “diagnosis or prognosis” on any form. The proposed rule would allow employers to request but not require disclosure.
  • While the proposed regulations would allow eligible employees to seek damages against employers who fail to provide them proper notice of their rights under the FMLA, the burden of proof in such cases would be quite high and employees would have to show actual damages suffered.
  • Current regulations stipulate that a health problem can qualify as a serious condition when an absence is followed by two visits with a healthcare provider. The proposed regulations would restrict FMLA eligibility by requiring that follow-up treatment take place within 30 days of the start of a medical absence.
  • Current law requires employers to provide notice to employees within two business days. The proposed rule expands the period to five business days.

The APWU and other unions are currently reviewing the proposed regulations and plan to file objections within the 60-day public comment period before the new regulations can take effect. The Labor Department has until the end of 2008 to publish its final regulations.