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Delaware FMLA Update

April 2nd, 2008 Posted by Amelia

Changes are coming to the Family and Medical Leave Act (FMLA) rules that apply to the process of medical certification. Among other things, the streamlined regulations will permit employers to “request” recertification of ongoing conditions every 6 months, provided it is in combination with an absence.

The term “request” as used by the U.S. Labor Department actually has more force than it sounds. If an employee does not comply with a “request,” the employer may legally deny him or her an FMLA leave.

In addition, the new regulations have a formal stipulation that employers are permitted to require a new medical certification yearly if an employee has an ongoing health condition. If a worker had migraine headaches requiring periodic days off under FMLA, the employer could require recertification of the condition annually.

FMLA guarantees workers up to 12 weeks of unpaid, job-protected leave every year for their serious health condition or that of a member of their immediate families. Employers have had the right traditionally to require that a healthcare professional certify the condition. Second or third opinions about the condition may be required, provided the employer pay for them.

Current regulations allow employers to request recertification in two cases.

In one, recertification may be requested after 30 days but only in connection with an absence. Employee John, for example, has surgery and takes more than one month of FMLA. His employer may request recertification after 30 days, provided John is still absent from work.

In the other, employers may seek recertification if a healthcare professional specified a time limit on a certification. If employee Mary’s provider, for example, says she must be absent 6 weeks because of carpal tunnel syndrome, Mary’s employer may seek a recertification after 6 weeks – if she is still absent. However, problems arose when providers described a condition as “lifetime” or of “unknown” duration. Employers were left without the ability to seek recertification.

Another change permits employers to clarify a certification form with a healthcare provider, as long as neither party violates HIPAA medical privacy regulations. No information beyond the medical form may be sought.

More Delaware FMLA Changes

Revisions of the “fitness-for-duty” certification process are included in the proposed new changes to the FMLA regulations.

The changes and updates, which affect employers across the U.S., were recently released by the U.S. Department of Labor. Employers (and others who may be interested) may comment on the changes until April 11, 2008, when they are published in the National Register. At that time, they become law.

The current regulations allow an employer to require that before workers on FMLA leave return to the job they must provide a healthcare professional’s certificate that they are capable of returning to work.

The new changes refine the certification process.

One change is aimed at eliminating abuse by employees, and addresses those workers who take intermittent FMLA leave. If there is a reasonable job safety concern, the employer may require the “fitness-for-duty” certificate each time the employee wishes to return from FMLA leave. If truck driver Carl, for example, has vision problems caused by migraine headaches, his employer can require a certificate each time he comes back. This is obviously because a driver who cannot see properly would be a valid safety issue. If a safety issue does not exist, say for a pregnancy resulting in morning sickness, the employer cannot seek a certification.

Another change would permit employers to require that the “fitness-for-duty” certificate specifically speak to the issue of an employee’s ability to conduct essential parts of his or her work. A warehouse worker, for example, who lifts heavy containers regularly would have to show that he or she is again capable of lifting heavy objects.

Employers must always apply policies like the “fitness-for-duty” certificate consistently and uniformly to situations that are similar. All employees who take FMLA leave, then, may be required to present a certificate, but the same employer may choose not to demand such a certificate from someone returning from leave after caring for an adopted child.

Title VII of the Civil Rights Act of 1964 makes it illegal to use this or any policy to discriminate based on race, religion, color, sex, or national origin.