HR Specialist: Employment Law

Clear, common-sense employment law advice that cuts directly to the bottom line. An attorney may say what the law is – but the monthly issues of HR Specialist: Employment Law and its related weekly e-letters explain what managers and human resource professionals should do that is both safe and practical in the real world of business. Learn more about HR Specialist: Employment Law and the two free reports you'll get when you subscribe...

The FMLA entitles eligible employees to up to 12 weeks of unpaid leave to recover from a serious health condition or assist an immediate family member with a serious health condition.

The key to determining whether the employee or family member has a condition that meets the law’s definition of “serious health condition” is the medical certification the employer receives from the employee’s health care provider.

What's new

In January, the Bush administration updated FMLA regulations, tightening the rules regarding who may request certification.

This year, more than a dozen important changes to the FMLA took effect — from notice obligations to certification procedures. Some favor employers, while others strengthen workers’ rights. But they ALL require you to make key changes to your FMLA policies and practices. Register now for our intensive webinar: FMLA Compliance 2009

To maintain employee privacy, the person requesting the information from the health care provider must be an HR professional, a leave administrator, a management official or another health care provider. In no case may it be the employee’s direct supervisor.

Further, employers may not 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 as part of the certification.

In the past, medical certification requests were tightly constrained, permitting employers to collect medical information relevant only to the particular malady that created the need for leave. By contrast, employees seeking accommodation for a disability under the ADA were required to enter an interactive process where they were free to volunteer information.

Under the new regulations, employers may 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 designation.

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.

Employers may require a new certification at the beginning of each FMLA year. This is true regardless of when the leave began. Employers may request recertification every six months for employees with chronic conditions. If the employee’s condition changes within six months, the employer may request a recertification. Unlike initial certifications, employers may not request a second or third opinion on a recertification.

Maybe you already speak “FMLA-ese” and have a general understanding of the 2009 changes. But don’t stop there – your employee’s lawyer won’t! Part 2 of this intensive training webinar focuses on Advanced FMLA Strategies: Tips & Tactics to Minimize Abuse and Limit Liability. Register now for this interactive event!

How to comply  

Employers should update their FMLA policies and procedures to reflect the new regulations. In fact, the new regulations give employers some important tools to reduce FMLA abuse.

If the employer finds an employee’s medical certification insufficient, the employer must specify in writing what information is lacking and give the employee seven calendar days to cure the deficiency.

Under the old regulations, when employers substituted paid leave for unpaid FMLA leave, employees could provide just the medical certification required by the employer’s sick leave plan (if any). The new regulations give employers the right to request FMLA medical certification anytime FMLA leave is requested, whether paid leave is substituted or not.

Join us for this two-week FMLA training webinar with attorney Matthew Effland, who literally wrote the book on FMLA compliance.

Webinar #1 — FMLA Compliance 2009: New Pitfalls, New Powers — will cover:

• How to comply with the new military-family leave law. It contains some legal surprises.
• Which new poster requirements are needed for compliance – and the proper language to revise your handbooks.
• How notification rules have changed … for the better.
• What now counts as an FMLA-qualifying “serious” medical condition.
• New actions you can take with certification forms to detect – and defeat – fraud.

Webinar #2 — Advanced FMLA Strategies: Tips & Tactics to Minimize Abuse and Limit Liability will teach you how to:

• Master FMLA paperwork like a pro
• Confidently handle any FMLA question employees throw at you.
• Thwart those employees who try to “game” the FMLA system.

Register now for this need-to-know event!