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Alabama FMLA Update

March 7th, 2008 Posted by Amelia

The medical certification process gets an overhaul in new changes proposed to the Family and Medical Leave Act (FMLA) rules that affect employers across the nation, including those in Alabama.

Among other things, the changes permit employers to request recertification of what is called an “ongoing condition” at least once per 6-month period. The word “request” is used by the U.S. Labor Department, but in fact employers may deny FMLA leave to a worker who refuses to comply.

The FMLA gives Alabama employees the right to take as much as 12 weeks of unpaid and job protected leave annually to attend to their own or immediate family members’ “serious health condition.” Employers, in turn, have the right to require an employee to provide a medical certification from a doctor or other healthcare practitioner. Sometimes employers may also have the right to second or third opinions, provided they cover the cost of those additional opinions.

Under present regulations, there are two conditions under which an employer may request a recertification. First, they may request them after 30 days, provided the worker is currently absent on FMLA. Second, recertification may be requested if the healthcare provider named a specific time limit on the original certification. If employee Mary’s doctor, for example, said she must take 6 weeks of FMLA leave because of carpal tunnel syndrome, then recertification may be requested after 6 weeks.

The problem for both employers and courts has been that healthcare practitioners sometimes declare a condition “lifetime” or its duration “unknown.” In those cases, employers do not clearly have the right to request a recertification.

The new regulations formally permit employers to require new medical certifications yearly if a worker has a serious health condition that is ongoing. Assuming an employee had migraine headaches requiring periodic, unscheduled days off under FMLA, his or her employer could require annual recertification.

Proposed certification changes also address patient privacy. Employers may contact a healthcare provider for clarification of information on a certification form. But neither party may go beyond what is permissible in the HIPAA regulations about medical privacy. The Labor Department’s optional recertification form has been updated. Providers need not specify diagnoses.

More Alabama FMLA Changes

“Fitness-for-duty” certifications are one of the key tools an employer uses to cope with employees’ use of FMLA leave.

An employer may by law require that an employee returning to work after taking FMLA leave to tend to his or her serious illness provide a “fitness-for-duty” certificate from a healthcare professional.

The certificate must show that the worker is capable of resuming the most important tasks of his or her job.

The U.S. Department of Labor has announced a broad series of proposed changes to the FMLA, or Family and Medical Leave Act that affect employers across the nation in important ways. Among the changes proposed are important ones involving the “fitness-for-duty” certification.

Employers and others have until April 11, 2008 to comment on the proposals. After that, the changes will be published in the National Register and officially become law.

One proposed change in the certification system applies to workers who take intermittent FMLA leave, and it is designed to cut back or eliminate FMLA abuse by some workers. According to the change, if there were a reasonable safety risk involved, the employer would be allowed to require a “fitness-for-duty” certificate every time the worker takes FMLA leave and seeks to resume his or her job.

If truck driver “Carl,” for example, suffers intermittent migraine headaches that interfere with his vision, that would be considered a safety concern. Each time he took FMLA leave because of his vision problem and sought to return to the job, his employer could require him to submit a certificate again. On the other hand, if employee “Maria” is intermittently absent for a day or a few hours of FMLA leave at a time because of pregnancy-caused morning sickness, that would not be a safety hazard, and her employer could not require a certificate each time she came back from FMLA leave.

The other planned change would permit an employer to require that a certification address, in a direct manner, the worker’s capability of resuming the key tasks of his or her job.