Suits In The WorkPlace

THE NEW FMLA REGS (PART 3 of 5) - The Certification Process

The Certification and Recertificaton Process:

The Who? The What? & The When?

The new FLMA regulations provide for three critical changes in the certification and recertification process.  These changes deal with which employer representatives may contact the health care provider who performed the certification, the content of fitness-for-duty certifications, and new timing provisions for both employers and employees. By learning these three simple changes to “the who, the what, and the when,” you’ll know all you need regarding the new certification and recertification process under the new FMLA Regulations.

The Who

The Who are an English rock band formed in 1964. The primary lineup was guitarist Pete Townshend, vocalist Roger Daltrey, bassist John Entwistle and drummer Keith Moon. They are one of the most influential rock bands of the 1960s and '70s, and recognized as one of the greatest rock and roll bands of all time.  But I digress…

The Who?: Who can Contact an Employee’s Health Care Provider.

In response to concerns raised by employees regarding their medical privacy, the new Regulations specify which employer representatives may contact the health care provider who provided the employee certification. This representative must be either:

1. A health care provider
2. A human resource professional
3. A leave administrator; or
4. A management officer

The Regulation is equally clear, however, as to which employer representative may not contact the employee’s health care provider.  Under the new regulations the employee’s direct supervisor may not contact the employee’s health care provider who provided the employee’s certification.

The What?:  Information & The Fitness-for-Duty Certification

A fitness-for-duty certification allows employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide certification that they are able to return to work  The new Regulations change some of the content that employer’s can obtain during the fitness-for-duty certification process.  Under the new Regulations an employer may: 

1. Require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job; and
2. Require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave where reasonable job safety concerns exist.

The When?

The Regulations also clarify several different timing provisions for when employers can ask for a recertification from an employee and how long employees have to correct any deficiencies in their certifications or recertifications.  The new provisions are summarized below.

• The Regulations provide many new timing provisions within the certification and recertification process.

• Employers may now request a new medical certification each leave year for medical conditions that last longer than one year.

• Employers may now request a new medical recertification for an ongoing condition every six months in conjunction with an employee’s absence.

• The employee has seven days to cure any deficiencies in their certification or recertification after the employer has notified the employee that their certification is either incomplete or insufficient. It’s also worth noting that if an employer believes that a medical certification is incomplete or insufficient, the employer must specifically tell an employee in writing what information is lacking.  This written notice triggers the employee’s seven days to cure the certification.

The Why?: 

These changes are aimed at bringing the certification and recertification process into compliance with the Health Insurance Portability and Accountability Act (“HIPPA”) by ensuring that the employee’s medical information is kept private.  By clarifying the certification and recertification process, both employers and employees will be able to navigate the process with fewer pitfalls.

The Summary

There you have it—the “who,” the “what,” the “when” (and even the “why”) of the new FMLA Regulations and the certification and recertification process.  For those of you that still want to read more, you can read the Regulations in their entirety.  The certification and recertification provisions begin at 29 C.F.R. §§ 825.305 and end at 29 C.F.R. 825.313.

 [Special thanks to Melissa Taylormoore, an associate in our Tysons Office]

Employee Notice Requirements - the Bright Side (Part 2 of 5)

Last week we discussed the notice obligations imposed on employers by the new FMLA regulations.  This week we're going to review one of the more employer-friendly sets of changes brought about by the regs:  employee notice requirements; i.e., how much notice does an employee have to provide, and what do they need to say?

Foreseeable Leave

Section 825.302 addresses foreseeable leave, and retains the traditional 30-day notice requirement.  If it is not possible to provide 30-days' notice, notice must be provided as soon as practicable.  Again, this part isn't really new.  However, the regulations now go further and state that it is usually "practicable" to provide notice the same day or the next business day, absent extenuating circumstances.  This new language should be helpful for employers who have employees with last-minute notice problems.  For qualifying exigency leave, there is no 30-day requirement, but an employee still must provide notice as soon as practicable.  The regulations also provide that employees must comply with the employer’s usual notice and procedural requirements for leave.  The language that prohibited an employer from delaying or denying leave if the employee did not follow such procedures has been deleted.