Changes to the FMLA Certification Process

The U.S. Department of Labor recently released proposed updates to the FMLA regulations that affect employers nationwide.

Employers and other interested parties have the opportunity to comment on the changes until April 11, 2008. At that point, the final regulations will be published in the National Register and have the effect of law.

Two of the biggest changes are in the employer’s favor. Workers are required to follow the employer’s call-in procedures when they must miss work, even if they will be using FMLA leave for the absence. (There are special exceptions for “unusual circumstances” such as when an employee is hit by a train on the way to work.)

The other major change gives employers five business days, rather than two business days, to send out eligibility and designation notices to employees who may qualify for leave.

Other changes to the FMLA rules concern the medical certification process. Employees are entitled to take up to 12 weeks of unpaid, job-protected FMLA leave per year for their own “serious health condition” or to care for a son, daughter, spouse or parent with a “serious health condition.” Employers have long had the right to require that the serious health condition be certified by a healthcare practitioner.

In many cases, the employer can even request a second or third opinion on the employee’s health condition. However, the employer must pay for these opinions.

The new regulations streamline the medical certification process. The employer is permitted to contact the healthcare provider to clarify a medical certification form. However, both parties must adhere to HIPAA regulations regarding the privacy of medical regulations.

Under the new regulations, employers may not ask healthcare providers for additional information that is not included on the medical certification form. The U.S. Department of Labor’s WH-380 form for medical certification has been updated, although the form is still optional. The form allows a healthcare provider to specify the employee’s diagnosis or serious health condition on the form, if the healthcare provider wishes. However, healthcare providers are not required to supply a diagnosis as part of the certification process.

The new regulations also include a formal proviso that employers may require a new medical certification each year, when an employee has an ongoing serious health condition. For example, if an employee suffers from migraine headaches and periodically must take an unscheduled day off under FMLA, the employer can require annual re-certification of this condition.

Under current regulations, employers may request a recertification under one of  two conditions. Employers can request recertification after 30 days, but only in conjunction with an FMLA absence. If John has surgery and takes more than a month off under FMLA, the employer can request recertification after 30 days – but only provided that John is still absent.

The second condition under which an employer can request recertification is if a time limit specified by a healthcare provider on a previous certification. For example, if Mary’s healthcare provider specifies that she needs to be on FMLA leave for 6 weeks due to Carpel Tunnel Syndrome, her employer can request recertification after 6 weeks if Mary has not returned to work.

This regulation proved troublesome for both employers and the courts when the healthcare provider specified that the employee’s condition was “lifetime” or that the duration of the condition was “unknown.” Current regulations don’t clearly give employers the opportunity to have the employee recertified under those conditions.

The new regulation allows the employer to request recertification of an ongoing condition at least once every 6 months, in conjunction with an absence.

The term “request” as used by the U.S. Department of Labor in this regard is probably misleading. In reality, if the employee doesn’t comply with this “request” the employer can deny the FMLA leave legally.