New FMLA Regulations Change Process of Medical Certifications.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

30. §825.305: Certifications Supporting Need for Leave. Employers may still require certification of the need for leave (including medical certifications and certifications of qualifying exigencies). Employers must give at least notice of the need for certification when it is required for exigency leave and written notice for medical certifications. Employer must also advise the employee of the anticipated consequences of the employee’s failure to provide the certification.

Timing. The DOL substantially modified the timing of certification process. Employers now have five business days (instead of just two) to request certification. “The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.” Employees must return the completed certification within 15 calendar days (including employees who give at least 30 days advance notice of foreseeable leave who currently need only return the certification before the leave commences). The employee can return the certification later if it is not practicable despite the employee’s diligent, good faith efforts or if the employer agrees to a longer period of time. Employers are not required to inform employees when the employer has not received the requested FMLA certification form. Rather, employees must assume the burden of confirming with the employer and, if applicable, the healthcare provider to ensure that the certification form has been delivered (if the employee did not personally deliver it).

Deficient Certifications. If the certification received by the employer is incomplete or insufficient, the employer must so advise the employee in writing what additional information is necessary to cure the certification. “A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.” The employee has seven calendar days to cure any noted deficiency (unless the time is not practicable despite the employee’s diligent, good faith efforts). If the deficiencies are not cured by the re-submitted certification or is not resubmitted within the time frame, the employer may deny the FMLA leave until the required certification is provided. The employer is not required to provide multiple opportunities for the employee to cure a defective certification form.

Less Strict Standard. Significantly, the DOL deleted the current requirement prohibiting employers from requesting medical or other certification if the employee substituted paid leave and that paid leave policy utilized less onerous procedures. For instance, most employer sick leave policies do not require an employee to produce medical certification if an employee misses less than three days of work due to an illness. However, the DOL feels that the FMLA gives the employer the right to seek FMLA certification if that illness is covered by the FMLA (i.e., recurring, chronic conditions, etc.). Accordingly, employers may not require the employee to produce medical certification forms if the absence will be protected by the FMLA even if the employee substitutes paid sick leave for the unpaid FMLA leave and the employer’s sick leave policy does not require medical certification.

Annual Certifications of Long-Term Health Conditions. The new regulation also permits an employer to request a new medical certification form every new leave year when the absence is due to a serious health condition which lasts beyond a single leave year.
Employer can require annual recertification for chronic conditions. This is considered a new medical certification (with the right to authentication and second opinions, etc.) and not a recertification.

31. §825.306: Medical Certification forms. The DOL has created two separate forms for medical leave – one for the employee’s own condition (form WH-308-E) and one for the medical condition of a family member (form WH-308-F). Both forms are attached as Appendix B to the final regulations and may be found on the DOL website. Employers are still precluded from requesting information from a medical provider beyond what is on the DOL forms as a condition of FMLA leave, but notably may now request additional information in connection with substituting paid leave under the employer’s regular policies or state workers’ compensation system or in evaluating requests for reasonable accommodations under the ADA. Employers may consider this additional information obtained in connection with workers’ compensation claims, paid leave policies and/or ADA reasonable accommodations in evaluating requests for FMLA leave. However, employees must be informed that their failure to satisfy these additional requests for information will not affect their entitlement to FMLA leave.

Medical Releases. Employers are still precluded from seeking a release for medical records as a condition of obtaining FMLA leave, but employees are free to provide a medical release to the employer in the employee’s discretion. Providing a release/waiver does not relieve the employee of his/her obligation to provide a complete medical certification upon request. If the employee provides such a release or waiver, the employer may contact the medical provider directly.

New Information to be Requested. The new forms permit the employer to obtain the healthcare provider’s fax number, specialization (which will be helpful in the event that the employer wants a second opinion from a specialist), whether working a reduced schedule is medically necessary, whether there will be any episodic flare-ups (including the anticipated frequency and duration of the flare-ups) and whether it will be medical necessary for the employee to be absent from work if there are such flare-ups. The DOL still will not require a physician to provide a diagnosis, but is encouraged to provide medical facts which may include symptoms, diagnosis, or any regimen of continuing treatment.

32. §825.307: Authentication, clarification and other medical opinions. Although under the current regulations, an employer is not permitted to directly contact the employee’s healthcare provider, under the new regulations the employer is permitted to directly contact the employee’s healthcare provider under two circumstances to obtain authentication or clarification of the form. The employer is still not permitted to request additional information from the healthcare provider.

Authentication. After the employer has given the employee the opportunity to cure any deficiencies in the notice (as discussed above), the employer’s healthcare provider, human resources professional, leave administrator or management official (who is not the employee’s direct supervisor) may directly contact the employee’s healthcare provider, provide the provider with a copy of the certification and request verification that the information contained on the form was completed and/or authorized by the provider who signed the document. Although the employee’s consent is not necessary (and is unlikely in the event of fraud), the employee is responsible for providing the employer with any authorization required by HIPAA in order for the employer to authenticate information on the certification form.

Clarification. After the employer has given the employee the opportunity to cure any deficiencies in the notice (as discussed above), the employer’s healthcare provider, human resources professional, leave administrator or management official (who is not the employee’s direct supervisor) may directly contact the employee’s healthcare provider (without the employee’s authorization) to understand the handwriting on the medical certification or to understand the meaning of a response. The employee is responsible for providing the employer with any authorization required by HIPAA in order for the employer to clarify information on the certification form. If the employee does not provide the employer with any necessary HIPAA authorization, the employer may deny the FMLA leave if the certification form remains unclear.

Second and Third Opinions. Under the new regulations, employees will now be required to authorize the release of all medical records relevant to the FMLA leave to the healthcare providers selected to render second or third opinions (in the event of a dispute). An employer may deny FMLA leave if the employee fails to authorize the release of medical records to the second or third opinion healthcare provider. An employer now has five business days (rather than two) to provide a copy of the second/third medical opinion to the employee.

Foreign certifications. Employees who obtain medical certifications in a non-English speaking country are responsible for having the information translated into English upon request.

33. §825.308: Recertifications. The DOL reorganized and modified the process of recertifications in the new rule. In general, unless the medical certification form provides a definite duration for the condition (i.e., 60 days or lifetime), employers will now be able to request a recertification of the medical condition at least every 30 days. When the certification form provides that the medical condition will last longer than 30 days, the employer can request a recertification no more often than the stated minimum duration (i.e., 60 days) or every six months. If the requested FMLA leave is less than 30 days, the employer may only request recertification if the employee requests an extension of the leave, there has been a significant change in the circumstances described in the certification form or information has cast doubt upon the employee’s stated reason for the absence or continuing validity of the certification. For instance, if the certification form indicated that that the employee would typically miss two days of work for each migraine headache, and the employee took four days off work, the increased duration could constitute a significant change in the circumstances described in the certification form justifying a more frequent recertification request. Another example would be if the employee took four weeks off for knee surgery and then played in a softball league. The employee must return the recertification within 15 calendar days of request.

Suspicious behavior. “As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the healthcare provider if the serious health condition and needed for leave is consistent with such pattern.” This change is consistent with prior DOL letter opinions.

Employees still bear the burden of paying for any recertifications. Employers are still not entitled to second or third opinions of recertifications.

I will eventually complete my summary of the remaining significant changes in the new FMLA regulations on this blog, including at New FMLA Regulations Create New Certification Requirements for Military Leave for Exigencies and Care of Servicemembers. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.