labor lawAdivision of labor law center

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.

Northern Alabama, Northern Indiana, and the Delaware Valley. Northern California and the Mississippi/Arkansas Delta. What do these places all have in common?

They all encompass regions that have suffered slow growth and high jobless rates. And they have all been the beneficiaries of WIRED grants that have helped kick-start their stalled economies.

A South Dakota unemployment grant could do the same thing for parts of the state that have suffered from higher-than-average unemployment. The U.S. Department of Labor has just announced its third generation of the WIRED grants, an extremely competitive funding program that rewards plans that “think outside the box” when it comes to developing plans to prop up sagging economies.

The grant’s official name is the Workforce Innovation in Regional Economic Development Initiative. Since its inception, the Labor Department has pumped $260 million worth of WIRED grants into 26 different regions throughout the U.S. Thanks to the program, 10 different federal agencies have worked together to develop high-paying, highly-skilled jobs – the kinds of jobs needed to compete in a rapidly changing global economy.

As Secretary of Labor Elaine Chao described it when she announced the second round of WIRED grants, “Investing in area workforces through this collaborative approach will boost entire regions’ economic vitality.” She added that the regional economic development plan “transcends political boundaries to better leverage a region’s assets to help workers succeed in the 21st century worldwide economy.”

Emily Stover DeRocco, the Assistant Secretary of Labor for Employment and Training, emphasizes the benefits of partnership. She said the Third Generation of WIRED is designed “to position local Workforce Investment Boards as leaders of a strategic regional partnership.” And she noted that “through talent development strategies and integration with regional economic development, this partnership can drive economic transformation in regions across the country and improve employment and advancement opportunities for workers.”

First, Secretary Chao sends letters announcing a new round of the grants to governors. They in turn pick only two proposals from those that cross their desks. Each of those proposals may be for up to $5 million dollars.

Good news is on the horizon for South Dakota workers with disabilities. A partnership has formed between a federal agency and a large organization that represents professionals in the human resources field. The federal agency involved in this alliance is the US Office of Disability Employment Policy, also known as ODEP. The human resource association is the Society of Human Resource Managers, also known as SHRM.

Assistant Secretary of Labor for Disability Employment Policy, Roy Grizzard, heads ODEP and explains, “This alliance formalizes the relationship we have had with SHRM, benefiting SHRM as it serves its membership with the resources ODEP brings to the table and offering ODEP the opportunity for broader contact with human resource professionals.”

This partnership will give South Dakota workers with disabilities access to additional resources. Workers will still receive the services they currently acquire from the South Dakota Department of Labor. This new alliance will create additional opportunities.

This alliance between ODEP and SHRM is a first. The Society of Human Resource Managers has been in existence since 1948. SHRM has 550 chapters in over 100 countries with 205,000 members. The US Office of Disability Employment Policy was established in 2001. ODEP is a separate agency from the US Department of Labor and helps disabled workers by setting policy and identifying resources.

Training, outreach, education, technical assistance, and communication are some of the areas targeted by this new alliance. ODEP and SHRM will conduct research along with supplying disabled workers with guidance and information. Facilitating communication across industry and federal agencies is another goal of this alliance.

This alliance also should spur dialogue on a national level about the employment of disabled workers. Over the past few years, disabled workers have experienced an increase in job opportunities. Still, as a group, disabled workers are underutilized in the workforce. The new alliance between ODEP and SHRM should help improve this situation. 

Here’s some news on the South Dakota W-2 Form. If you’re an employer, you’ll be happy to know that these forms can now be sent through email in a PDF, portable document file. Permission is required before you can send an employee their form electronically, however. If they want the form in print that is the way they should get it. Many people probably won’t mind getting it in their inbox, though.

The IRS has stated that all employers need to pass accurate W-2 forms to employees by the last day of January 2007 recording last year income and withholdings. Either the W-2 is sent with tax returns or the Forms 4852 and 4598 have to be filled out. That final pay stub just won’t do any more, not since 2004. Nobody likes paperwork, let alone extra paperwork.

Did you remember to get the South Dakota W-2 form out to all of your workers? Anyone who files their taxes without that form has to complete additional paperwork explaining who their employers are and why they didn’t get a form. The biggest problem with getting the forms to people on time is usually incorrect addresses. In that case, the employee needs to make sure that addresses are correct if they moved last year.

Most employers are right on the money with getting the forms out. After all, it is required by law. Smaller businesses sometimes have a more difficult time getting it all finished. Depending on how many employees they have, it can be pretty time consuming. With all the technology and business software available these days, things are thankfully getting easier. Larger companies tend to outsource their payroll, so they often don’t have to worry about those forms. It certainly must take a load off the regular human resources department.

In case you employers in South Dakota hadn’t heard, I thought I would fill you in on a recent change to the labor laws out there surrounding the mandatory posters that all of you must have in each of your work sites across the state. The change has happened because of the Veterans Benefits Improvement Act of 2004, or the VBIA. This law was signed into effect by President Bush on December 10, 2004.

One of the provisions of the Veterans Benefits Improvement Act of 2004 calls for employers to have to post notice of their basic USERRA rights and duties, and to place this poster for USERRA in each of their places of employment. I can hear you saying: “You’ve told us about this USERRA poster a thousand and one times before—for South Dakota and every other state in the Union!”

Sure, fair enough. I have, and I hope you loyal readers out there remember all of the valuable info I have imparted to you about the USERRA poster and other labor law posters, federal, state, and otherwise. But the catch here is that after this regulation became in effect on March 10, 2005, it was amended again on January 18, 2006.

What’s the catch? I just want to make sure that you have the latest USERRA poster available to meet the requirements of this most recent of amendments. After all, it is the start of a New Year, and what better resolution to have for the New Year than to be entirely sure you are following all of the labor laws necessary for employers in South Dakota, and whatever other state you may have workers in. How best to do this? Read my blog of course and soak in all of the valuable human resource advice and info that I impart on a daily basis.