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Important changes are afoot regarding the federal FMLA regulations for employers nationwide, including those in Oregon.

Recently, several changes were proposed to for the Family and Medical Leave Act(FMLA) . Included in these changes are procedures to streamline the medical certification process.

The new regulations allow companies to request recertification of an employee’s “serious health condition” at least once every six months.

The FMLA allows workers to take up to 12 weeks of unpaid, job-protected leave for this “serious health condition” and the employer can require a statement from a physician certifying the condition. Before granting the leave, a company may ask for a second and even a third opinion, but must pay for these opinions.

The U. S. Department of Labor provides an optional medical certification form, WH-380. The form has been updated, and allows physicians to specify the worker’s “serious health condition”, but doesn’t legally require them to do so. The new regulations prohibit employers from asking the healthcare provider about anything that is not on this form. Also, when an employer contacts healthcare personnel, both parties must comply with HIPAA regulations regarding the patient’s privacy.

The changes to the certification process are a welcome change for employers. Currently, FMLA regulations only allow employers to request recertification for two reasons. If the “serious health condition” has a time limit on it, and the worker doesn’t return to work when that time limit is up, the employer can request recertification. Or, if the employee takes more than 30 days of FMLA leave and is still absent, the company can require recertification.

Under the updated FMLA, the employer can request recertification for ongoing conditions once a year. For instance, Keri suffers from migraine headaches and needs to take unscheduled FMLA leave periodically throughout the year. Under the new regulations, the company can request that Keri get the condition recertified by her healthcare provider on an annual basis.

This particular change helps employers clarify some of the vague terms previously used by healthcare personnel. “Lifetime” or duration “unknown” classifications of a “serious health condition” gave employers no avenue to request recertification.

More Oregon FMLA Changes

Current FMLA (Family and Medical Leave Act) regulations allow employers to require a “fitness-for-duty” certification before employees return to work. For instance, a company may require a worker with a “serious health condition” to provide a fitness certification, but may not do so for an employee returning from FMLA leave after adopting a child.

Recently, the U. S. Department of Labor proposed several changes to the FMLA regulations, including two amendments to the process for “fitness-for-duty” certification.

First, employers will be allowed to require the “fitness-for-duty” certification to specifically address the employee’s job functions. For instance, Jake operates an industrial crane and breaks his hand. His employer is completely within his or her rights to require a “fitness-for-duty” certification before Jake returns to work, to ensure he can safely perform his job.

Second, employers will be able to require medical certification each time a worker returns from intermittent FMLA leave. Molly drives a delivery van, but often suffers from migraines which blur her vision. Each time she takes FMLA, her supervisor can request certification that her vision is back to normal. The supervisor can demand this certification because Molly’s ability to see is a safety concern.

If safety on the job isn’t a valid concern, employers are not legally allowed to require “fitness-for-duty” certification. For example, Sandra is pregnant and takes intermittent FMLA leave because of severe morning sickness, which has been certified by her physician. Her condition isn’t a valid safety concern, so her employer can not demand fitness certification upon her return.

These changes go into effect on April 11, 2008. Until that time employers and all interested parties are welcome to make comments. Once the finalized regulations are published on the National Register, they become law.

These new changes, as with all company policies must be applied fairly to all workers in similar situations. Several federal laws protect employees from discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination due to color, race, national origin, sex or religion. Additional laws protect workers from age (over 40), pregnancy and disability discrimination.

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