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Maine FMLA Update

April 1st, 2008 Posted by Amelia

New FMLA regulations proposed by the U.S. Labor Department would change the rules under which Maine employers can require workers to provide a medical recertification.

The new planned changes to FMLA, among other things, would permit the employer to “request” recertification of an ongoing health condition every 6 months concurrent with an absence.

Although the work “request” is used, an employer may deny FMLA leave if a worker fails to comply with the “request.”

Employers may require a new medical certification annually in the case of serious ongoing health problems. If an employee must take periodic unscheduled days off through FMLA for a migraine headache condition, for example, employers are permitted to require that the condition be recertified every year.

Employees may take as much as 12 weeks of unpaid and job protected FMLA leave yearly to attend to their own “serious health condition” or that of a member of their immediate family. Employers, in turn, have the right to require medical certification of the condition.

Under the old regulations, there were some ambiguities regarding recertification. Employers may request it after 30 days but only if the employee is currently absent under FMLA.

In addition, recertification may be required under the old rules if the worker’s healthcare provider specified a time limit on a previous recertification. If the original certificate allowed an employee to take 6 weeks of leave for a condition like carpal tunnel syndrome, then after 6 weeks the employer could require recertification if the employee has not returned to work.

However, if a doctor, for example, said a worker’s condition was “lifetime” or its duration “unknown,” problems arose because, technically, employers would not then have the legal right to require recertification.

While employers are permitted under the new rules to contact a healthcare provider for clarification of a medical certification, both the provider and the employer must stick to HIPAA medical privacy regulations. The new rules forbid employers from asking for information not already on the certification form. A diagnosis need not be provided on the optional Labor Department form WH-380, which has been updated.

More Maine FMLA Changes

April 11, 2008 is the cutoff date for Maine employers and others to comment on proposed revisions and changes to the Family and Medical Leave Act (FMLA) released by the U.S. Department of Labor.

After that, the changes become law when they are published in the National Register. The changes will affect employers across the U.S.

The changes address many aspects of the FMLA, and two significant changes apply to what is called the “fitness-for-duty” certificate.

Employees may, under the current FMLA rules, require a worker returning from FMLA leave to provide a certification from a health care professional showing that he or she is capable of assuming the tasks of the job once again. If a worker takes leave for his or her own serious health condition, the employer may require the certificate. If the employee takes the leave to care for a newly adopted child, however, the employer may choose not to require the certificate.

One of the proposed changes to the “fitness-for-duty” certification procedure applies to those employees who must take their FMLA leave on an intermittent basis. If a safety concern exists, employers would be able to require a certificate every time the employee proposes to return to the job. If truck driver “Carl,” for example, suffers migraine headaches that interfere with his vision, his employer is allowed to require “fitness-for-duty” certification each time Carl returns to the driver’s seat.

If no reasonable safety issue exists, however, the employer may not require a certificate. If “Maria” suffers morning sickness as a result of pregnancy, and she must take intermittent leave, her employer cannot require the certificate because safety issues will not arise.

The other change would allow employers to require that a certification specifically speak to an employee’s ability to resume the functions of his or her usual job. A warehouse employee, for example, would need to supply a certificate showing that he or she could lift heavy objects again.

As with other employment practices, requiring a “fitness-for-duty” certificate is something an employer must apply fairly and uniformly to all workers in similar situations.