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South Dakota FMLA Update

April 10th, 2008 Posted by Amelia

New changes to the Family and Medical Leave Act (FMLA) regulations permit an employer to “request” medical recertification of an employee’s medical condition every 6 months in connection with an absence.

In reality employers may legally deny an FMLA leave if a worker refuses to comply with the “request.”

Under the new FMLA rules, employers may require recertification annually for an ongoing serious health condition. If a worker, for example, suffers from migraine headaches that require periodic single-day FMLA absences, the employer can require the condition be recertified every year by a health professional.

They also allow an employer to clarify a medical certification with a healthcare professional. Both the employer and the health provider must abide by HIPAA medical privacy regulations, however.

Also under the new regulations issued by the U.S. Department of Labor, employers must not ask the health professional for any information that is not on the certification. While the Labor Department’s WH-380 form has been updated, it remains optional. The form allows the provider to fill in a diagnosis of the employee, but it is entirely up to the professional’s discretion.

The FMLA guarantees workers up to 12 weeks of job-protected, unpaid leave yearly to tend to their own serious illness or that of a spouse, parent, son or daughter. Employers in turn have traditionally had the right to require medical certification of the health condition.

The old regulations allow employers to seek recertification in two situations.

In the first, they may request it after 30 days, but only if the employee is currently absent. If John has surgery that keeps him out more than a month under FMLA, the employer may seek recertification after 30 days are up. But John must still be absent at the time.

In the second, they may request recertification if a healthcare provider stipulated a limit on the previous certification. If the provider said Mary’s carpal tunnel syndrome requires 6 weeks of FMLA leave, then the employer may seek recertification if she is still out of work after the 6 weeks is up.

When providers listed conditions as “lifetime” or of “unknown” duration, employers could not seek recertification.

More South Dakota FMLA Changes

Family and Medical Leave Act regulations allow employers to require workers returning from FMLA leave to present a “fitness-for-duty” certificate from a healthcare provider showing that they are capable of returning to the job.

Some proposed changes to the FMLA rules would revise the “fitness-for-duty” certification process.

One change is designed to stop abuse of FMLA leaves by some workers. It applies to those employees who take intermittent FMLA leave on short-term bases. Employers would have the authority, under the change, to require a certification each time the employee wishes to return from leave, provided a valid job safety issue exists.

If truck driver Carl suffers periodic migraine headaches that interfere with his vision, his employer could require that he present a certificate each time he returned. Obviously a truck driver with impaired vision would be a valid safety concern.

On the other hand, if employee Maria needs to take intermittent FMLA leave due to morning sickness during her pregnancy, her employer could not require recertification. No safety issue exists here.

Another change would allow employers to require that the “fitness-for-duty” certificate address directly the matter of a worker’s ability to conduct major functions of her or his position. If a warehouse employee’s job consists largely of lifting heavy boxes, then he or she could be required to present a certificate showing the ability to once again lift heavy objects.

The U.S. Labor Department recently released a series of proposed changes to the FMLA regulations. The updates could affect employers throughout the nation. Both employers and others who may be interested have until April 11, 2008 to comment on the changes. Following that date, they will be published in the National Register and have the force of law.

As with all policies, this one must be applied uniformly in similar situations. An employer must require certification from all employees returning from FMLA leave after a serious illness. The same employer may exempt all employees taking the leave to care for a newly adopted child.

Employers must still abide by the prohibition against discrimination under Title VII of the Civil Rights Act of 1964, in granting FMLA leave.