On Jan. 16, the U.S. Department of Labor’s new
The most significant changes were to the regulatory scheme for handling certifications and medical documentation. The new regulations break leave certifications into two mandatory steps: (1) an eligibility notice at the outset of the leave, and (2) a designation notice after the employer has gathered enough information to make an informed decision about the propriety of the leave request.
To help facilitate this information gathering, the new regulations also changed the medical certification process.
The eligibility notice
Under the new regulations, when an employee requests FMLA leave, employers must notify employees of their eligibility to take FMLA leave. Employers must provide this notice of eligibility within five business days of receiving notice of the need for leave, absent exigent circumstances. The eligibility notice accomplishes the following:
1. It tells the employee the date the leave was requested and the employer’s understanding of the reason supporting the leave.
2. It tells whether the employee is eligible to take FMLA leave and, if not, why.
3. For eligible employees, it gives a date for the employee to return any requested documentation for the leave, such as a medical certification.
4. It discusses arrangements for payment of health insurance premiums while on leave, the use of concurrent paid leave, whether the employee is considered a “key employee” and any requirements for periodic status reports.
5. It gives the employer’s chosen method for calculating the FMLA leave year.
If an employee is eligible for FMLA leave, the employer must simultaneously provide a written notice of “Rights and Responsibilities” under the FMLA.
The designation notice
Once an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA, the employer must notify the employee within five business days (absent exigent circumstances) that the leave is designated as FMLA leave.
The designation notice tells employees one of five things:
- The leave is approved.
- More information is needed to determine if the leave can be approved.
- The leave is denied.
- The FMLA does not cover the leave request.
- The employee has exhausted his or her FMLA leave entitlement for that 12-month period.
If the leave is approved, the employer must designate how much leave is expected to be taken, whether paid leave will be taken concurrently with the FMLA leave and whether a fitness-for-duty certification will be required before the employee will be permitted to return to work.
The medical certification process
The new regulations make six key changes to the medical certification process:
1. During the medical certification process, officials other than the employee’s direct supervisor will be permitted to speak directly to the employee’s health care provider.
2. Employers may not ask health care providers for additional information beyond that required by the certification form.
3. Separate medical certification forms will be available for the employee and covered family members.
4. If an employer deems a medical certification to be incomplete or insufficient, the employer must specify in writing what information is lacking, and give the employee at least seven calendar days to cure the deficiency.
5. Employers may request a new medical certification each leave year for medical conditions that last longer than one year.
6. In all cases, employers are now permitted to request recertification of an ongoing condition every six months in conjunction with an absence.
What this means for you
These new regulations provide a fundamental change in how employers manage FMLA leave requests.
The process is now bifurcated, splitting eligibility and designation. It eliminates the problems employers faced in having to conditionally certify leave as FMLA leave before having all of the information necessary to make a proper determination.
Coupled with the new medical certification rules, employers will have much greater access to information in making FMLA decisions.
While these regulations largely are a benefit to employers, they do pose significant new requirements with which employers must comply. It is incumbent on all HR professionals to learn these new rules and be prepared to implement them.
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