[Be advised that this summary was updated on January 12, 2009]
Last month, the federal government published its final regulation which will require many federal contractors and subcontractors to begin using the e-verify program to confirm the employment eligibility of many existing and newly-hired employees as federal service and construction contracts and solicitations are issued or amended after January 15, 2009. In other words, federal agencies are directed to insert a new clause into procurement contracts and solicitations requiring contractors and subcontractors to enroll and utilize the e-verify program. This regulation implements Executive Order 12989 which was amended in June 2008. E-verify was formally known Basic Pilot/Employment Eligibility Verification Program and is operated by the Department of Homeland Security and the U.S. Citizenship and Immigration Service in partnership with the Social Security Administration. “Information on registration for and use of the e-verify program can be obtained via the internet at the Department of Homeland Security web site: http://www.dhs.gov/e-verify.”
Not All Contracts Affected. The clause need not be included in all federal contracts (and does not include, for example, commercially off-the-shelf goods, contracts which do not exceed the simplified acquisition threshold, are only for work outside the United States, are for performance periods of less than 120 days, etc.). Department Heads may waive the e-verify requirements.
Employees Necessarily Affected. If the contractor is affected, all new hires and those current employees (hired after November 6, 1986) who are assigned to the subject federal contract are required to be checked with the e-verify program. However, contractors have the option of verifying the employment eligibility of all existing employees (hired after November 6, 1986) instead of merely those assigned to the contract in case there is difficulty determining which employees are performing such work. In that event, the verification should be implemented within 180 calendar days of enrollment in the e-verify program or of when notification is given to the e-verify operations of the decision to exercise this option.
Not All Employees Necessarily Affected. Instead of verifying the employment eligibility of all new employees, certain employers (i.e., colleges, state and local governments, etc.) may elect to only verify the employment eligibility of new and current employees who are assigned to the federal contract. Contractors are also not required to verify the employment eligibility of current employees (i) who hold an active security clearance of confidential, secret or top secret, (ii) who have been issued HSPD-12 credentials by the Department of Homeland Security; or (iii) whose work normally performs support work (such as indirect or overhead functions) and does not perform any substantial duties applicable to the contract.
Duties. If they have not already enrolled in e-verify, affected employers are required to enroll “as a Federal Contractor in the E-Verify program within 30 calendar days of the contract award . . . Within 90 calendar days of enrollment in the E-Verify program, [the employer must] begin to use E-Verify to initiate verification of employment eligibility of all new hires . . . . who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire . . . . For each employee assigned to the contract, [the employer must] initiate verification within 90 calendar days after date of enrollment or within 30 calendar days of the employee’s assignment to the contract, whichever date is later.”
Employers who already enrolled in e-verify at least 90 days before when the contract is awarded must “initiate verification of all new hires . . . . who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire. Employers who have not been enrolled in e-verify for at least 90 days before the contract is awarded, must begin using the program within that 90 day period.
Insomniacs can read the full executive order at http://www.whitehouse.gov/news/releases/2008/06/20080609-2.html or read more about the e-verify program from the USCIS website at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD. The final regulation can be reviewed at 73 Fed. Reg. 67651 (11/14/08) or http://edocket.access.gpo.gov/2008/pdf/E8-26904.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.
Tuesday, December 9, 2008
Wednesday, December 3, 2008
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.
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.
Tuesday, December 2, 2008
New FMLA Regulations Create New Certification Requirements for Military Leave for Exigencies and Care of Servicemembers.
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:
34. §825.309: Exigency Leave Certification. This new “rule establishes that an employer may require that the employee provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation, and the dates of the covered military member’s active duty service. [It also] establishes that each time leave is first taken for one of the qualifying exigencies specified in § 825.126, an employer may require an employee to provide a certification that sets forth certain information,” such as a description of and attaching a copy of a meeting announcement, informational briefings, school counselor appointments, and/or invoices for legal services; the dates of the leave, the frequency and duration of reduced schedule or intermittent leave; contact information for meetings with third parties (like school counselors), etc.. It also “describes the optional form (Form WH–384) developed by the Department for employees’ use in obtaining certification that meets the FMLA’s certification requirements. The form is optional for employers and reflects the certification requirements established in § 825.309(b) so that it is easier for an employee to furnish appropriate information to support his or her request for leave because of a qualifying exigency. Form WH–384, or another form containing the same basic information, may be used by the employer; however, no information may be required beyond that specified in this section.”
Verification Process. Finally, the new “rule establishes the verification process for certifications. . . . If an employee submits a complete and sufficient certification to support his or her request for leave because of a qualifying exigency, the employer may not request additional information from the employee. However, if the qualifying exigency involves meeting with a third party, the employer may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment schedule and the nature of the meeting between the employee and the specified individual entity. For example, an employer could call a school to confirm that a meeting took place between the employee and the teacher of a child of a covered military member. The section provides that no additional information may be requested by the employer and the employee’s permission is not required in order to verify meetings or appointments with third parties. In addition, the final rule allows an employer to contact an appropriate unit of the Department of Defense to request verification that a covered military member has been called to active duty status (or notified of an impending call to active duty status) in support of a contingency operation. Again, no additional information may be requested by the employer and the employee’s permission is not required. This verification process will protect employees from unnecessary intrusion while still providing a useful tool for employers to verify the certification information given to them.” The final rule does not provide for a re-certification process because the DOL found it unnecessary under the circumstances.
35. §825.310 Servicemember Care Leave Certification. This new “rule provides that when leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to support his or her request for leave with a sufficient certification . . from [an] authorized health care provider” of the covered servicemember. The DOL also developed a new optional form, Form WH–385, which may be used to obtain appropriate information to support an employee’s request for leave to care for a covered servicemember with a serious injury or illness.” The new form seeks “information specific to the NDAA requirements for taking leave to care for a covered servicemember, including: (1) Whether the servicemember has incurred a serious injury or illness; (2) whether the injury or illness may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank, or rating; (3) whether the injury or illness was incurred by the member in line of duty on active duty; and (4) whether the servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise on outpatient status, or is otherwise on the temporary disability retired list. The . . . optional certification form (WH– 385) for covered servicemember leave includes two additional categories of internal DOD casualty assistance designations used by DOD health care providers ((VSI) Very Seriously Ill/ Injured and (SI) Seriously Ill/Injured) that also meet the standard of a serious injury or illness.”
As with the regular medical leave form, employees may be required to describe “(1) the probable duration of the injury or illness; (2) frequency and duration of leave required; (3) if leave is requested on an intermittent or reduced schedule basis, an estimate of the frequency and duration of such leave; and (4) the family relationship of the eligible employee to the covered servicemember.” Employers are permitted to “use this optional form, or another form containing the same basic information; however, as is the case for any required certification for leave taken to care for a family member with a serious health condition, no information may be required beyond that specified in § 825.310 of the final rule. In all instances, the information on any required certification must relate only to the serious injury or illness for which the current need for leave exists.
In addition, “the rule provides that an employer requiring an employee to submit a certification for leave to care for a covered servicemember must accept as sufficient certification ‘‘invitational travel orders’’ (‘‘ITOs’’) or ‘‘invitational travel authorizations’’ (‘‘ITAs’’) issued by the DOD for [any] family member [or next of kin] to join an injured or ill servicemember at his or her bedside” in lieu of form WH-385 or the employer’s own certification form. [These ITOs or ITAs for medical purposes are not issued by the DOD as a matter of course, but rather only when the servicemember is, at minimum, seriously injured or ill. The Department believes that all family members of a covered servicemember who are eligible to take FMLA leave to care for the covered servicemember should be able to rely on the DOD’s issuance of an ITO or ITA as sufficient certification to support a request for FMLA leave during the effective period of the ITO or ITA, even if the employee is not named on the ITO or ITA.] If an employee will need leave to care for a covered servicemember beyond the expiration date specified in an ITO or an ITA, the final rule provides that an employer may request further certification from the employee.” When an employee is using the ITA or ITO issued to another family member, “an employer may require an employee to provide confirmation of covered family relationship to the seriously injured or ill servicemember pursuant to § 825.122(j) of the FMLA in support of the employee’s use of an ITO or ITA.”
Finally, “the final rule provides that in all instances in which certification is requested, it is the employee’s responsibility to provide the employer with complete and sufficient certification and failure to do so may result in the denial of FMLA leave.” While employers may utilize the same verification and clarification process and deadlines utilized with regular FMLA leave, there is no provision for re-certification or second or third medical opinions with servicemember care leave.
I will eventually complete my summary of the remaining significant changes in the new FMLA regulations on this blog, including at New FMLA Regulations Change Return-To-Work Certifications and Clarify Rules on Delaying FMLA Leave Pending Certifications. 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.
Wednesday, November 26, 2008
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.
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.
Tuesday, November 25, 2008
New FMLA Regulations Significantly Change Employee’s Notice Requirements; Calling in Sick and Ignoring Employer’s Policies No Longer Suffices.
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:
27. §825.302: Employee Notice Requirements. This rule has also been reorganized and contains a few significant changes. As before, employees must give notice of a need for FMLA at least 30 days in advance or as soon as practicable. When the employee fails to do so, “the employee shall explain the reasons shy such notice was not practicable upon a request form the employer.” The new regulations gives examples of when 30 days’ advance notice may not be possible. Notice “as soon as practicable” should typically be given on the same or next business day. The former two-day notice requirement has been deleted. As before, employees need only give verbal notice of a need for FMLA leave (including the anticipated timing and duration) and, for first time FMLA requests, need not mention the FMLA. However, “[w]hen an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.” Moreover, “[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee and obtain the necessary details for the leave to be taken. An employee’s [f]ailure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.”
“An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” This is a significant change from the current rule and notably would include requirements of written notice setting forth the reasons for the leave and the anticipated duration and to contact a specific person. “When an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied” (unless the employer’s policy requires notice to be given more than 30 days in advance or as soon as practicable). “The Department recognizes that callin procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice as set forth in § 825.302(a).”
28. §825.303 Employee notice of unforeseeable leave. The new rule is so substantially similar to the general rule (above) that I am a little surprised that a separate rule was deemed necessary. As a result, I will not repeat those changes here. As with the current rule, employees are expected to give notice as soon as practicable. However, it “generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” The former two-day standard has been deleted. As with the general rule (above), the employee need not mention the FMLA the first time leave is requested, but must do so going forward. “Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”
29. §825.304: Employee failure to provide notice. The new rule reorganized and “clarified” the current requirements. For instance, FMLA leave may not be delayed or denied unless the employer has complied with the posting and handbook requirements (discussed yesterday). “If an employer does not waive the employee’s obligations under its internal leave rules and procedures for failure to follow its usual and customary notification rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with §825.303(a).”
I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Change Process of Medical Certifications. 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.
27. §825.302: Employee Notice Requirements. This rule has also been reorganized and contains a few significant changes. As before, employees must give notice of a need for FMLA at least 30 days in advance or as soon as practicable. When the employee fails to do so, “the employee shall explain the reasons shy such notice was not practicable upon a request form the employer.” The new regulations gives examples of when 30 days’ advance notice may not be possible. Notice “as soon as practicable” should typically be given on the same or next business day. The former two-day notice requirement has been deleted. As before, employees need only give verbal notice of a need for FMLA leave (including the anticipated timing and duration) and, for first time FMLA requests, need not mention the FMLA. However, “[w]hen an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.” Moreover, “[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee and obtain the necessary details for the leave to be taken. An employee’s [f]ailure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.”
“An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” This is a significant change from the current rule and notably would include requirements of written notice setting forth the reasons for the leave and the anticipated duration and to contact a specific person. “When an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied” (unless the employer’s policy requires notice to be given more than 30 days in advance or as soon as practicable). “The Department recognizes that callin procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice as set forth in § 825.302(a).”
28. §825.303 Employee notice of unforeseeable leave. The new rule is so substantially similar to the general rule (above) that I am a little surprised that a separate rule was deemed necessary. As a result, I will not repeat those changes here. As with the current rule, employees are expected to give notice as soon as practicable. However, it “generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” The former two-day standard has been deleted. As with the general rule (above), the employee need not mention the FMLA the first time leave is requested, but must do so going forward. “Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”
29. §825.304: Employee failure to provide notice. The new rule reorganized and “clarified” the current requirements. For instance, FMLA leave may not be delayed or denied unless the employer has complied with the posting and handbook requirements (discussed yesterday). “If an employer does not waive the employee’s obligations under its internal leave rules and procedures for failure to follow its usual and customary notification rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with §825.303(a).”
I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Change Process of Medical Certifications. 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.
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