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What’s up, doc? How to collect medical info under new FMLA rules

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

THE LAW: The FMLA allows eligible employees to take up to 12 weeks of unpaid leave annually to recover from a serious health condition or to care for an immediate family member with a serious health condition.

To determine whether an employee or family member has a condition that meets the FMLA’s definition of “serious health condition,” employers should review the medical certification they receive from the employee’s health care provider.

WHAT’S NEW: In January 2009, the Bush administration published updated FMLA regulations. One key section clarifies the rules regarding who may request additional information about an employee’s FMLA certification—and how it should be sought.

The good news: The new rules allow employers to directly contact an employee’s health care provider to seek clarification on an employee’s FMLA certification form.

HOW TO COMPLY: To maintain employee privacy, the new rules clarify who can make such inquiries.

Who can inquire? An employee’s “direct supervisor” is prohibited from requesting certification details from the health care provider. Instead, it must be either a “health care provider, a human resources professional, a leave administrator (including third-party administrators), or a management official.”

What can you inquire about? Employers can’t ask health care providers for additional information beyond what the certification form contains. Health care providers are allowed, but not required, to provide a diagnosis of the patient’s condition.

In the past, medical certification requests were tightly constrained, permitting employers to collect information relevant only to the malady that created the need for the FMLA leave.

By contrast, employees seeking accommodation for a disability under the ADA had to enter an interactive process with the employer in which they were free to volunteer information.

Under the new regulations, employers can use information gathered in ADA accommodation discussions or medical certification requests and workers’ compensation proceedings, as well as the FMLA certifications, to determine whether leave qualifies for FMLA.

If the employer can make the determination from information garnered during ADA accommodation discussions, there is no need to seek FMLA medical certification as well.

When can you inquire? If you find that the info on an employee’s medical certification is insufficient to make an FMLA determination, you must specify in writing what information is lacking and give the employee seven calendar days to cure the deficiency.

When can you request recertification? Employers can require employees to provide a new certification at the beginning of each FMLA year. This is true regardless of when the leave began.

Employers can request recertification every six months for employees with chronic conditions. If the employee’s condition changes within six months, the employer can request a recertification. Unlike initial certifications, employers may not request a second or third opinion on a recertification.

Final tip: Employers should update their FMLA policies and procedures to reflect the new regulations.

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