Medical Certifications, Fitness for Duty Certifications, and an Important New Opportunity for Employers

The DOL has created two new optional medical certification forms—one to be used for an employee’s own serious health condition, and one to be used for a serious health condition of an employee’s immediate family member (WH-380-E and WH-380-F).

The new regulations also now provide an important, new opportunity for employers: in order to guide a health care provider’s assessment of an employee’s ability to perform his or her job, employers may list the essential functions of the employee’s position on the certification to be completed by the health care provider. In fact, the DOL “strongly encourages employers to provide a list of essential functions when it requests medical certification.” If employers do not, a health care provider will take the employee’s word as to what his or her essential job functions are.

Employers are given the same new opportunity with fitness for duty certifications. If an employer wants a fitness for duty certification to address an employee’s ability to perform the essential functions of the employee’s position, the designation notice must say so, and must list the employee’s essential job functions. Taking advantage of this opportunity will make fitness for duty certifications much more meaningful for employers.

Another important change has been made regarding fitness for duty certifications. Previously, an employer could not request a fitness for duty certification for an employee who had taken intermittent FMLA leave for his or her own serious medical condition. Now, such a certification can be required once every 30 days in such situations if “reasonable safety concerns exist regarding the employee’s ability to perform his or her duties.”

Changes also have been made to the process for clarifying a medical certification. If an employer believes the certification is deficient, the employer must give the employee written notice of the nature of the deficiency and seven calendar days to cure it. If the employee does not, the employer now has more leeway than before. Under the existing regulations, only a health care provider could directly communicate with the employee’s health care provider about a certification. Now, a human resources professional, a health care provider, a leave administrator, or a management official can directly contact the employee’s health care provider for clarification. In no circumstances, however, can the employee’s direct supervisor contact the health care provider.

Revised Definition of Serious Health Condition

In the new regulations, the DOL has revised some aspects of the definition of a “serious health condition.” The definition never has been simple, and the new regulations do not change this fact. The regulations do, however, arguably make at least some aspects of the definition more employer-friendly. Now, a serious health condition is defined to include a period of incapacity of three or more full calendar days, if: (1) the individual sees a health care provider in person within seven days of the first day of incapacity; and (2) either (a) is treated a second time in person by a health care provider within 30 days of the first day of incapacity (absent extenuating circumstances) or (b) is given a regimen of continuing treatment. Additionally, the definition of a serious health condition relating to chronic conditions has been revised. Now, a chronic condition must require at least two visits to a health care provider per year in order to be considered a serious health condition.

Beware: Revised Definition of Eligible Employees

In order to be eligible for FMLA leave, an employee must have been employed by the employer at issue for at least 12 months. Some federal cases suggested that, under the existing regulations, the 12-month period did not need to be consecutive. The DOL has clarified this issue in a very employee-friendly manner. Now, the regulations make clear that the 12 months of employment do not need to be consecutive, and employers must look over their employment records over a seven-year period to determine FMLA eligibility. If you frequently rehire former employees, beware of this new provision.

Increments of Intermittent Leave Revised

Under the existing regulations, when an employee took FMLA leave on an intermittent or reduced leave basis, employers were required to account for the leave using the smallest increment of time the employer’s payroll system recognized. Because some employers have sophisticated time-keeping abilities, the result was that such employers were required to account for FMLA leave in increments as short as a minute. Now, the rule has changed–employers only are required to account for FMLA leave using the shortest period of time the employer uses to account for other forms of leave, so long as the time increment is not more than an hour.

Beware: Light Duty

Employers who regularly provide light duty work beware: the new regulations expressly provide that time an employee spends doing light duty work does not count against an employee’s FMLA leave entitlement. Furthermore, an employee does not waive his or her right to job restoration while working the light duty assignment.

Substitution of Paid Leave – Employer-Friendly Change

The concept of the substitution of paid leave for unpaid FMLA leave always has been complicated. The existing regulations further complicated the issue by treating medical leave differently from family leave, and by treating sick and medical leave differently from vacation or personal leave. Additionally, under the existing regulations, if an employer’s requirements for using paid leave were more stringent than the requirements for taking FMLA leave, the least stringent requirements had to apply.

These rules have changed. Now, all paid time off is treated the same, and employers can apply their usual rules for paid leave to employees on FMLA leave. If an employee seeking FMLA leave does not comply with the requirements of an employer’s paid leave policy, the leave still can be FMLA leave, but it will not be paid.

The DOL gives the following example: An employer requires paid sick leave to be taken in full day increments. An employee needs to take only two hours of FMLA leave. Under the new regulations, the employee has two choices: 1) take two hours of FMLA leave, unpaid; or 2) take a full day of paid FMLA leave.

The new regulations also allow public employers to use (paid) compensatory time off concurrently with (unpaid) FMLA leave.

Bonuses

Before, employees who were absent for FMLA leave still had to be paid “perfect attendance” bonuses. The new regulations change this rule. Now, if a bonus or other payment is based on the achievement of a specified goal, such as hours worked, products sold, or perfect attendance, and an employee fails to meet the requirements because of FMLA leave, the employee does not need to be paid the bonus.

Waivers

In the last several years, some federal courts (including the Fourth Circuit Court of Appeals) interpreted the existing FMLA regulations to mean that an employee could not waive or release his or her FMLA rights unless the DOL or a federal court approved the waiver. These court decisions made it very difficult to settle FMLA lawsuits and claims. The new regulations make clear that permission from the DOL or a federal court is not required in order to resolve such claims.

Instead, releases and waivers only are prohibited in advance of disputed claims (for example, employers cannot require employees to waive their FMLA rights as a condition of employment).

Steps You Should Take

In short, the new regulations will significantly affect employers subject to the FMLA. If the FMLA applies to you, these are the practical steps you should take:

• The FMLA policy in your employee handbook probably needs to be reviewed and revised. The policy now should include military caregiver and qualifying exigency leave. Also, your policy should be reviewed to make sure it complies with all of the new rules.
• Make sure your FMLA poster is current.
• Note that all of the DOL’s FMLA forms have changed. If you use any of the current DOL forms (such as the Employer Response to Employee Request for FMLA Leave, Certification of Health Care Provider, or the DOL’s notice of FMLA rights), you should now use the new forms. These forms can be downloaded at http://www.brookspierce.com/news/publications-files/www.dol.gov/esa/whd/fmla/finalrule.htm.
• As explained above, the new regulations specifically allow employers to give a list of essential job functions to health care providers for purposes of medical certifications and fitness for duty certifications. This is a great opportunity for you to get accurate information about an employee’s need for leave and readiness to return from leave. If you want to take advantage of this opportunity, it will be even more important that your existing job descriptions are current and up to date. If you do not have job descriptions, you will need to take steps to insure that information relating to job duties provided on FMLA paperwork is consistent and accurate.
• Your procedural requirements for requesting leave and reporting absences should be reviewed and potentially revised. Now, the DOL seems more willing to hold employees accountable if they do not use an employer’s reasonable procedural requirements for leave and notification of absences. Your procedural requirements should therefore be reviewed with this in mind.
• Make sure the individual or individuals in your organization responsible for FMLA compliance are aware of, and learn, the new rules and regulations. A lot has changed.
• Educate your front-line managers about the FMLA mlitary caregiver and qualified exigency leave because these are the individuals most likely to receive such leave requests in the first instance.