Ohio FMLA Update

April 3rd, 2008 Posted by Amelia

Under the Family and Medical Leave Act (FMLA), employees have the right to as much as 12 weeks of unpaid, job-protected leave yearly to deal with their own “serious medical condition” or that of a member of their immediate families.

Employers, in turn, have long had the right to require that a professional healthcare provider certify the employee’s condition. Employers have had the right to request second and third opinions, provided they pay for them.

Now some of the regulations regarding certification are being streamlined and updated. The new rules permit employers to “request” recertification of an ongoing condition at least every half-year, in connection with an absence.

The U.S. Department of Labor uses the word “request,” but employers may actually deny an FMLA leave if an employee does not reply with that “request.”

A new provision would allow employers to require new medical certifications yearly for an employee’s ongoing health condition. If a worker has migraine headaches, for example, and must take periodic days off through FMLA, yearly recertification may legally be required.

The new rules allow employers to clarify a medical condition with a healthcare professional as long as neither party violates HIPAA medical privacy regulations. Employers may not, however, ask the providers for information not included on the certification. While the WH-380 form has been updated, it remains optional. Healthcare providers need not supply a diagnosis.

Under the old regulations, employers could request recertification if a previous certificate put a time limit on the health condition. The problem is that providers often list conditions as “lifetime” or their duration as “unknown,” effectively preventing employers from seeking recertification. The new rules change that. If Mary suffers from carpal tunnel syndrome requiring 6 weeks’ absence, her employer may seek recertification if she is absent after 6 weeks are up.

Employers, under the old rules, could request recertification after 30 days, but only if the employee was currently absent on FMLA leave. If, for example, employee John takes more than one month off under FMLA his employer could seek recertification, but only if John is still away from work.

More Ohio FMLA Changes

New changes to the FMLA regulations will be published in the National Register after April 11, 2008. At that time they become law. Until April 11, employers may comment on the updates, as may other interested parties.

The U.S. Labor Department recently issued the proposed changes that will affect employers around the U.S. A significant change involves revisions to the so-called “fitness-for-duty” certification process.

One change would permit employers to require that the certificate specifically talk to the matter of an employee’s capability for performing key components of his or her job. If a warehouse worker’s job largely consists of lifting heavy containers, for example, the employer may require certification that the worker is capable once again of lifting heavy objects.

Another is designed to eliminate occasional abuse of the FMLA leave by some employees. It addresses situations in which workers take intermittent, short-term FMLA leave. The update would allow employers to require a “fitness-for-duty” certificate each time the employee wishes to return to the job, provided there is a valid safety concern.

If truck driver Carl, for example, suffers from migraine headaches that interfere with his vision, his employer may require a certificate each time Carl returns. Having a driver with impaired vision would be a valid safety concern. However, if an employee is pregnant and suffers intermittently from serious morning sickness requiring her to take FMLA leave, a certificate could not be requested because there is no valid safety concern involved.

FMLA regulations currently allow employers to require certificates from a healthcare professional showing they are capable of returning to work. The policy, as with other policies, must be applied consistently in similar situations. All employees taking FMLA leave for a “serious health condition” could be required to provide a certificate when they wish to return. But the manager may also choose not to require such a certificate from someone returning after caring for a newly adopted child.

This policy and all policies must adhere to Title VII of the Civil Rights Act. Title VII prohibits workplace discrimination based on religion, national origin, gender, color, or race.

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Posted in Employment Laws, Labor and Employment, Ohio

  1. Posted by: Where Great Links Start #1 « Where Great Workplaces Start

    [...] “Ohio FMLA Update” on the Labor Law Center Blog- Provides some great information on what FMLA is, for those who are unaware, as well as some updates on recent changes to the act. [...]

  2. Posted by: allen artis

    i am trying to find out if there is an FMLA that covers me. i don;t want off work but i drive a fork truck with a bad back my doctors have ask my work if they would move me to a different job that wont hurt my back so i don;t have to leave work the company said they will if i can fine a f.m.l. a or something like that they will is there anything i can show them allen

  3. Posted by: Amelia

    Hi allen! The situation that you describe is not covered by FMLA. The federal Family and Medical Leave Act only provides unpaid leave — it does not have an provision for an employee to be assigned to another job.
    Whether you are covered by a law or not depends upon the reason for your “bad back”. If it is a permanent disability, then you would be covered under ADA, the Americans with Disabilities Act. Under ADA, an employer must make reasonable accommodations for an employee with a disability. Reassigning a portion of your work duties would be a reasonable accommodation in many cases. In some cases, if the employer has another position open, that you are qualified to fill, they would need to assign you to it as a reasonable accommodation.
    However, if your condition is temporary, such as a pulled muscle, it is not covered under ADA. You could take time off for doctor’s appointments under FMLA, but the employer would not be obligated to reassign you.
    If you think you may have a disability, and the employer does not cooperate, contact the EEOC at http://www.eeoc.gov. HTH, and thanks for reading the blogs!~ Amelia

  4. Posted by: diane

    do fmla laws cover domestic partners?
    me and the guy i amwith have been together 16 years

  5. Posted by: Amelia

    Hi diane! No, the federal FMLA does not cover a domestic partner. A few states like Hawaii have state family leave laws that cover domestic partners, but Ohio does not.
    In Canada and some other countries, domestic pertnerships are legally recognized. In the U.S., they are not. Because you are not married, from a legal standpoint this person is a roommate or a friend, and is not entitled to any of the benefits that a spouse would have. (Which is one reason why many people get married, even if they would prefer not to.) A few companies offer benefits for employees in domestic partnerships, but there is no law requiring them to do so. If you got married tomorrow, FMLA would apply and you could begin taking it to care for your spouse. HTH, and thanks for reading the blogs!~ Amelia

  6. Posted by: Rene

    Message
    We have an employee abusing her fmla. She has it to take care of her husband intermittently. Can we require her to bring a note in every time she comes back?

  7. Posted by: Amelia

    Hi Rene! This is a tough problem that many employers face. Unfortunately, no, for many conditions you cannot require a new doctor’s note each time the employee is absent to care for her husband. You can require that the husband’s doctor certify that he geniunely has a serious health condition, and you can require re-certification every 6 months. In some cases, you can require re-certification more often. Example: If the original certification is for 90 days, you can require re-certification after that period ends. The link below is to the form that the U.S. Department of Labor recommends (but does not require) for such certification. The doctor can specify why leave is needed, how often leave is needed and the expected duration. If your employee is taking leave in excess of that amount, you can request re-certification.
    You can attach the employee’s attendance record to the re-certification form, and ask the doctor whether the spouse’s condition would warrent that much time off of work. Under the new 2009 regulations, however, the employee’s supervisor CANNOT call the doctor or doctor’s office and argue about the diagnosis or need for FMLA.
    Employees are permitted to take FMLA to care for a spouse with a serious health condition. The FMLA may be to accompany the patient to doctor’s appointments, to care for the patient or to supply emotional and psychological support for the patient. Employees are entitled to take time off for many conditions, even if the spouse does not have a doctor’s appointment that day or that week. So it is going to be difficult for you to prove that the employee is abusing her FMLA leave. If she is at the grocery store shopping, she can always contend that she was buying supplies needed for her husband — and you really cannot prove differently. (If she is at the nail salon getting a pedicure during normal work hours…that is probably not legitimately FMLA leave.)
    If the employee specifically states that she will be taking her husband to the doctor, then you could request verification of that, perhaps in the form of a reciept from the doctor’s office or a note from the doctor.
    If you believe that the spouse has no serious health condition, you can require a second and even a third medical opinion — but you must pay for those opinions.
    You can require that the employee follow your usual reporting procedures for any foreseeable FMLA absence, and of course you should track every hour of FMLA to make sure she does not exceed the limit. But it is very, very difficult to prove FMLA abuse and can be a minefield for the employer. If you decide to pursue this, we would suggest you hire an attorney specializing in employment law. HTH, and thanks for reading the blogs!~ Amelia

  8. Posted by: Tanya

    I have been very ill over the last 11 weeks, My husband has had three different FLMA request. They have all been approved. The final one is in effect now. He was approved for one full week of care and then intermittent care after that. He has requested a day off and they told him they need documentation? What? not sure of what. Are they allowed to do that? I am unable to drive or fully care for myself at this time, that is what the intermittent care is for. The FMLA has already been approved can they deny requested time off?

  9. Posted by: Amelia

    Hi Tanya! That depends. Usually when an employee is granted intermittent FMLA for a spouse’s serious health condition, it is to take the spouse to doctor’s appointments, etc. Intermittent FMLA cannot be used just because the employee wants a day off (even if they deserve a break!) Nor can it be used for childcare or to run errands that the spouse would normally handle. It appears that your husband has been granted this type of intermittent FMLA leave. The employer is looking for confirmation that he is genuinely using the time for your medical appointment. So yes, the employer can deny requested time off if they believe it is not genuinely FMLA.
    However, sometimes FMLA for a spouse’s serious health condition is simply to care for the spouse, whether that care is physical or psychological. If that is the case, your husband may be entitled to the time off. The determining factor would be how the doctor completed the certification for intermittent FMLA.HTH, and thanks for reading the blogs!~ Amelia

  10. Posted by: Katie Mccauley

    Message
    I am pregnant for the second time while working at the same company as the first pregnancy. I have been with this company for over four years. The first time I was pregnant I worked up to nine months pregnant on light duty because of the doctors orders which my company did accommodate. Now they are saying that they cannot accommodate me on light duty again so they are telling me when my doctor writes me a note for light duty that I have to go on short term disabilty. Now, the problem is that they are saying I might not actually get paid while on disability because I did not make my insurance payments the last time I was on disability. However, my company policy for short term and long term is that it is completely company paid. Also I never authorized any stop payment for anything…ever. By the way I am only around 5 weeks pregnant. They are also telling me that my job is protected by FMLA and that I can come back after the baby is born because my FMLA/Maternity leave does not kick in until I come off of disability, which will be when the baby is born. I asked why it mattered that I did not pay my insurance (medical/dental) the last time I was on disability when disabilty is company paid and a completely separate benefit. They told me that it was because the disabilty was tied into my insurance because the same company is assosiated with both. I need to know what to do I am completely confused and dont want to get screwed I am a single mom about to have two children in diapers. I have not even been to the doctor yet I am scheduled to go tomorrow Wednesday November 4th. I was already told that I will have to go on disabilty when I get a note from the doctor and I was also told that somebody is to start work in my place as of Monday November 9th.

  11. Posted by: Amelia

    Hi Katie! There are a number of issues here, so we’ll go through them for you one by one.
    First of all, the employer can change company policy at any time, so the policies that applied to your first pregnancy don’t necessarily apply to your second pregnancy. In this case, it appears that the employer no longer offers light duty to pregnant employees. That is their right. There is no federal or Ohio law that requires an employer to make reasonable accommodations for a temporary disability like pregnancy. (If you had a permanent disability like blindness, the employer would be required to make reasonable accommodations under ADA.)
    Some companies offer free short term disability insurance to employees who have for medical and dental coverage. This seems to be the case with your employer. This is a generous policy. There is no law that the employer has to offer this benefit to employees who do not have medical and dental coverage. Usually, an employee on short term disability must continue to pay his or her medical and dental insurance premiums, to continue coverage. If the employee is no longer being paid, the most common way to do this is for the employee to send a check for insurance to the employer every month, or every payperiod. If the employee does not pay these premiums, their medical and dental insurance can be canceled. It appears that this is what happened in your case. (And we would urge you to check that you do have medical coverage now.)
    So at this point it looks like your time off will be unpaid — which is not unusual. The majority of American women only have unpaid leave for maternity leave.
    The employer is actually being generous by holding your job for you. Under federal law, they could begin your FMLA the first day you have to go on light duty. If you were away from work one day more than 12 weeks, the employer could terminate you. Apparently you have been told they will not do that. They will not start your FMLA until you are physically able to return to work. Again, this is very unusual and you should double-check that this is what they meant — and if possible, ask them to put that in writing.
    It is 100% lawful and even wise for the employer to train someone else to take over your duties. They can hire additional employees at any time they like. However, if the employer lays you off (while you still have your doctor’s permission to work) because you are pregnant, that is illegal discrimination based on pregnancy. If you return to work when your 12 weeks of FMLA are up, and they refuse to put you back to work, that would be a violation of your FMLA rights. But if you are off even one day longer than the 12 weeks, you can lawfully be terminated.
    Since you are a single mom, we will also say that the children’s father should be paying child support, and supporting you financially during your time off. Your children deserve a secure life, and you are not going to be able to provide that on your wages alone. Please feel free to post any additional questions that you might have. HTH, and thanks for reading the blogs!~ Amelia

  12. Posted by: Katie

    Thank for answering my questions Amelia. I did check and I do still have medical and dental coverage and have had it this entire time(from when I went on leave my first pregnancy till today). The only thing is when I went on leave my first pregnancy the deductions did not come out of my disability checks (FICA did but that was it). I was never informed of where or when or how much was to be paid and to whom I was to send any payments to. Like I said though my insurance never cancelled and the deductions continued to come out of each and ever paycheck before I went on leave and after I came back. I also checked company policy and it is the same, short term and long term disability are completely paid for by the company. Does this mean I will be paid disability? Also if the doctor does not put me on light duty yet can they still make me go on leave since they already hired somebody to take my place?

  13. Posted by: Amelia

    Hi again Katie! The bottom line is, when an employer provides a benefit, the employer makes up the rules (company policies) for that benefit. The employer and the insurance company can set whatever limits they like on providing short term disability insurance to employees, since the employer is providing this benefit free of charge. Apparently you have already been told by someone at the company that you may not qualify for short term disability payments when you go on leave. Nothing we say is going to change that. (You can press the HR department for a definitive answer one way or the other, but be very friendly, tactful and non-confrontational when you do so. The last thing you want to do right now is make the employer angry.)

    The good news is, the employer cannot force you to go on FMLA or maternity leave while you are physically able to work. When you go on leave is up to you, and your doctor. (Depending upon your job duties, the employer may require that you have a doctor’s release to continue working. Any employer can request this during the later months of the pregnancy, and the employer can request it earlier if they have reason to believe it may not be safe for you to work.) But as long as you have your doctor’s written permission to work, your employer cannot force you to take time off. Doing so is illegal discrimination based on pregnancy, under federal law. Even if they changed your hours to part-time due to your pregnancy, that would be illegal discrimination. (If that happens, file a complaint with the EEOC at http://www.eeoc.gov.)

    Because your employer has assured you that you will have a job to come back to, we see no reason to be unduly worried. It appears they are simply being proactive by hiring someone in case you need to go on leave soon. Again, stay in touch and let us know if you have any more questions. HTH, and thanks for reading the blogs!~ Amelia

  14. Posted by: Katie

    Thanks again Amelia I have one last question though. What would be considered “in writing”? Would an email from the HR lady or department stating that they are going to give me my job back be considered “in writing” and would that be legally binding?

  15. Posted by: Amelia

    Hi Katie! No problem — feel free to post as many questions as you like.
    Yes, an email counts as being “in writing.” You should print out a copy of the email that shows the message and the date, and keep it at home. It at least indicates that the employer is stating that your FMLA does not begin until your short term disability ends, which is an unusual policy.
    Is this binding? Well…even if the employer signed a contract in blood, it might not be enforcable in court. If conditions changed, the employer could change their mind. For example, if the company went out of business or reorganized, they could argue that it changed the situation. We don’t want to scare you, but there is almost never an ironclad guarantee, where jobs are concerned. However, putting this in an email indicates that the employer has honorable intentions — which is an excellent sign. (And we give them kudos for warning you that you might not qualify for short term disability benefits ahead of time.) HTH!~ Amelia

  16. Posted by: Katie

    Thanks Amelia

  17. Posted by: Amelia

    Hi Katie! You are very welcome.
    If there is a written copy of the company policy regarding short term disability benefits, and after reading it you feel you should be covered, you may want to see if there is a way to appeal that decision. But again, you want to be very tactful in this situation, because it appears the employer is already providing you with more benefits than they legally have to. Please know that we are here to answer your HR questions anytime!~ Amelia

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