THE LAW. Thelets eligible employees take up to 12 weeks of un-paid, job-protected leave each year for their own "serious health condition," or if the employee is caring for a parent, spouse or child with a serious condition.
To help determine whether an ailment rises to the level of a "serious condition," you can require employees to provide an FMLA medical certification. Essentially, that's a doctor's note that lays out the facts of the ailment, how long it's likely to last and more. In certain cases, you can ask for recertification to verify the person's continuing need for.
The law doesn't require employers to obtain medical certification from em-ployees who take FMLA leave. In fact, you can choose to ask for it in certain situations but not others. Still, it's best to set a consistent practice regarding when you require FMLA medical certifications and to treat all employees seeking leave in the same way. (Note: You can't require employees to provide medical certification for FMLA leave taken to care for a newborn or adopted child.)
WHAT'S NEW. In a recent opinion letter, the U.S. Labor Department clarified the controversial issue of when employers can seek recertification of FMLA leave. The ruling answered an all-too-familiar problem: employees using in-termittent FMLA leave in a noticeable pattern of Friday and Monday absences.
The law lets you request recertification "on a reasonable basis." If no minimum time is specified on the medical certification form, you can typically request recertification no more than once every 30 days, and only in connection with an employee's absence. If you receive information that makes you suspect FMLA-leave abuse, you can ask for recertification more frequently than every 30 days.
Fortunately, the Labor Department said that a pattern of Friday/Monday absences counts as information that "casts doubt upon the employee's stated reason for the absence." That means you can seek recertification more frequently than every 30 days, so long as the request is made in connection with an absence. While Labor's opinion letters aren't legally binding, courts often defer to them. (Read the opinion letter on recertification at www.dol.gov/esa/whd/ opinion/fmla/FMLA_05_25_04.htm.)
HOW TO COMPLY. Medical certification must relate only to the serious health condition that's causing the current need for leave. In other words, you can't ask for information about the employee's general health or any other medical conditions. You should ask when the serious health condition began, its likely duration, appropriate medical facts regarding condition, whether there's a need forand a statement that the employee is unable to work.
After your request certification, you must give employees at least 15 calendar days to submit the paperwork to you. While it's not your responsibility to hound employees to submit the certification on time, courts will frown on companies that deny leave simply because the employee submits his certification form on the 16th day.
So, if employees' certification is missing or lacking information, notify them of the problem, and give them a reasonable amount of time to correct it. If the employee never provides the certification, you can deny the request.
If you doubt the need for leave, you have the right to investigate the medical certification. For example, a health care provider representing your company can call the employee's physician to clarify and confirm the medical certification (if the employee gives you permission). But you can't request additional information from the health care provider.
If you're still not convinced, you also can require and pay for a second opinion. You can use an independent doctor that you select, but the person can't regularly work for your company. If the two opinions conflict, you can pay for a third and final binding medical opinion.
- Sample medical certification form (Form WH-0380) from U.S. Labor Department at www.dol.gov/esa/regs/ compliance/whd/fmla/wh380.pdf. (Using the form is optional, but it's a good idea to ensure compliance.)
- Free Solution Center reports from You & the Law, including How to Wipe Out Fraud and Abuse Under FMLA, at www.hrspecialist.net/fmla.
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