New FMLA Regulations Change Return-To-Work Certifications and Clarify Rules on Delaying FMLA Leave Pending Certifications.

As mentioned in the summaries from the last two weeks, the DOL issued new FMLA regulations in November 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:

36. §825.311: Intent to return to work. Although this rule was renumbered, there were no substantive changes from the current regulation at §825.309.

37. §825.312: Fitness for duty Certification. The new rule permits an employer to require a fitness-for-duty certification upon a return to work which certifies that the employee is able to resume work and, if the employer provided a list of the essential job functions to the employee and notified the employee of the requirement in the designation notice, addresses the employee’s ability to perform the essential functions of the job. The employer is also permitted to clarify the certification (as with the prior certification), but may not delay reinstatement during the clarification process. The “simple statement” provision has been deleted, as had the provision requiring an employee to provide a certification at his/her own expense if s/he could not return to work because of a continuation, recurrence or onset of a serious health condition.

Intermittent Absences/Reduced Schedule. In general, employers are not entitled to fitness-for-duty certifications for each such absence or reduced leave schedule. However, when “reasonable safety concerns exist” and the employer so notified the employee in the designation notice, an employer may require such certification no more often than every 30 days. “Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others” based on the nature, magnitude and likelihood of potential harm that could occur.

ADA. As with the current regulations, the employer may not violate the ADA in the certification process. However, the new rule makes clear that “the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA” when the ADA is applicable.

38. §825.313 Failure to provide certification. The new rule clarifies that an employer may deny FMLA leave until the employee provides the required certification or recertification. Because the employee typically has 15 days after request to provide the certification or recertification, the period after the 15 days would be unprotected leave. Job restoration may also be denied if the employee fails to provide a fitness-for-duty certification as directed in the prior designation notice.

There are a few additional changes in other regulations (to conform existing regulations to issues already covered in this blog), but they are unlikely to be applicable on a daily basis in most workplaces, so my work here is done summarizing the new FMLA regulations. Of course, readers could always call me for additional details. In any event, 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.