labor lawAdivision of labor law center

Recent changes were made to FMLA (Family and Medical Leave Act) regulations that include rules to streamline the medical certification process.

FMLA allows workers to take up to 12 weeks of unpaid, job-protected leave to care for their own “serious medical condition”, or to care for a seriously ill family member (FMLA defines family member as spouse, parent or child). Before granting FMLA leave, the employer can require medical certification of the worker’s need for the leave. The employer can even require a second and third opinion, but payment for these opinions is the employer’s responsibility.

Currently, Utah employers can only request recertification under two conditions. If an employee takes more than 30 days of FMLA and remains absent, or has medical certification with a specific time limit and doesn’t return to work, the employer can request a recertification.

Under the new regulations, employers will be able to request recertification of a worker’s “serious medical condition” at least once every six months. In this context, however, “request” isn’t quite the correct term. If an employer “requests” recertification, the employee must comply. Otherwise, the employer is legally within its rights to deny the FMLA leave.

The new regulations permit employers to contact healthcare providers for clarification on the certification. The U. S Department of Labor provides an optional form for medical certification, the WH-380. The physician can specify the worker’s diagnoses on this form, but isn’t legally required to do so. The employer can only inquire about information on the certification form, though, and both parties must comply with HIPAA’s medical privacy regulations.

Included in the updated FMLA is a provision for employers to request a worker to provide a new certification every year for an ongoing condition. Consider Mary, who suffers from migraines and takes unscheduled FMLA on occasion. Her employer can request a new medical certification once a year, to update the requirements for her leave.

More Utah FMLA Changes

Several updates to FMLA regulations proposed by the U. S. Department Labor will become law on April 11, 2008. Employers nationwide will be affected, and until the finalized rules are published, are welcome to comment on those changes.

Two major changes to the FMLA regulations include updates to the process for “fitness-for-duty” certification.

Currently, employers can require workers on FMLA leave to provide certification from their healthcare professional that they are able to return to work. For example, employees who take leave for a “serious health condition” will probably be asked to provide a “fitness-for-duty” certification. An employee, however, returning from FMLA after adopting a child may not be asked for certification.

The new FMLA regulations will allow employers to have the “fitness-for-duty” certification address the worker’s job functions. For instance Bob works in the warehouse and regularly lifts boxes weighing more than 50 pounds. If he injures his back and takes FMLA leave, his employer can request a fitness certification to ensure he is physically able lift heavy objects.

The second change to the “fitness-for-duty” process pertains to workers who take FMLA leave on an intermittent basis. The new regulation will permit employers to request a fitness certification each time the worker takes time off. For example, Burt drives a delivery truck and suffers from migraine headaches. Because these headaches blur his vision, his company can require a “fitness-for-duty” certification each time he takes leave. Blurred vision for a driver is a safety concern. In addition, this change may reduce or even eliminate abuse of FMLA leave by employees.

If the employee’s condition does not involve a safety concern, the company can not require a “fitness-for-duty” certification. An example is Barbara who is suffering from severe morning sickness during her pregnancy. She takes intermittent FMLA to deal with this condition, which has been certified by her physician. Her condition is not a valid safety concern, so her employer can not require a “fitness-for-duty” certification.

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