Why did the DOL's FMLA forms expire?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms to the Office of Management and Budget (OMB) for approval, so that OMB can ensure the information request and the time spent responding to the request is minimized.  [Insert your own sarcastic comment about the efficiency of the federal government here.]  OMB approved the DOL's FMLA forms in late 2008 around the time the new FMLA regulations took effect.  As a result, the forms were approved for three years, which is the maximum time period allowed.  Upon expiration of the forms (in this case, on December 31, 2011), the DOL may continue to use the forms while it seeks renewal of OMB's approval, which it has done in this instance. 

Even if employers can continue to use the DOL's FMLA forms, should they use them?

Ahem, this really is the more important question.  In a nutshell, we encourage employers to proceed with caution.  At a minimum, keep the following in mind and make appropriate changes in 2012 and beyond:

1. Add the GINA safe harbor provision to your FMLA notices and forms.  Under the Genetic Information Nondiscrimination Act (GINA), employers requesting medical certifcation or fitness for duty certification must instruct health care providers not to collect or provide any genetic information.  Therefore, employers should strongly consider adding language to their FMLA medical certification forms for an employee’s serious health condition and when an employee is seeking to care for a family member with a serious health condition.  And to avoid any further procrastination, I am even giving you the new language you should use.  Here it is:
   
   Employee's Serious Health Condition
   
   The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
   
   Family Member’s Serious Health Condition
   
   The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Please provide medical history information regarding your patient only to the extent necessary to fully respond to all relevant items below.
   
   Note:  This language should be added to the FMLA medical certification form or other written documentation that accompanies the form, and should be used when a fitness for duty certification is requested.  I also recommend that employers also use the above language in any correspondence to a health care provider where the employer is requesting medical information (e.g., to support a request for an ADA accommodation).
   
   
2. Consider adapting the DOL's "model" FMLA forms to suit your needs.  As my colleague Bill Pokorny shared in a prior post, the DOL's "model" FMLA forms fall short in several respects.  To name a few: 1) the medical certification forms do not request all of the information that employers may require, such as information regarding an employee's work restrictions; 2) the model designation notice does not include language addressing the rules for fitness-for-duty certifications for intermittent or reduced work schedule leave, which will be crucial to combat FMLA misuse and abuse; and 3) because the DOL's forms are designed as a "one-size-fits-all" solution, they include extraneous information that will not apply to all or even most employers, and do not reflect individual employers' policies and procedures.  Additionally, the forms do not account for the changes to exigency leave, which now is possible as a result of a family member's call to duty in a foreign country (as opposed to the confusing "contingency operation" language originally used). 
   
   However, changing the language of the DOL's model FMLA forms should be done carefully.  At a minimum, we encourage you to update your notices and forms regarding the change to exigency leave above.  Either way, we strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their rights under the FMLA regulations while also fully complying with the rules.

Employers: Fear no more!  In a recent case decided by the employee-friendly Ninth Circuit, an employer has the right to deny FMLA leave where the employee refuses or fails to provide adequate certification to support the need for leave under the Family and Medical Leave Act.  Lewis v. United States and Donley (pdf).  This case has excellent practical take aways for employers.

Plaintiff Janet Lewis was the director of a child development center on a U.S. Air Force Base.  After she was not selected for a promotion, she requested FMLA leave.  In response, the Air Force asked her to return a completed medical certification (WH-380E pdf) form.  After the Air Force gave her additional time to submit medical certification, Lewis provided certification stating that she was "diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescription medications, and 120 days off work."  Shortly thereafter, Lewis' supervisor informed her that the information she provided was insufficient to support the need for FMLA leave.  Lewis refused to provide additional information.  As a result, the Air Force immediately converted the leave to Absence Without Leave (AWOL) and later terminated her employment as a result.

Termination Upheld

Lewis contested her termination internally and filed a lawsuit claiming that the Air Force interfered with her FMLA rights when it refused to provide FMLA leave.  The Court disagreed. 

Strike One: First, the court found that the employee failed to provide medical certification that showed she suffered from a serious health condition that rendered her incapable of performing the duties of her job.  Take note of what was significant to the Court:  

The form, however, fails to provide a summary of the medical facts that support [Lewis'] diagnosis . . . [and] contains no explanation as to why Lewis was unable to perform her work duties and no discussion about whether additional treatments would be required for her condition.

Strike two: Interestingly, the employee argued that the Air Force should have sought a second opinion if it questioned the adequacy of the certification and desired additional information.  The Court quickly rejected this argument, holding that an employer clearly has the right to obtain information from an employee when it questions the sufficiency of the medical certification.  Only when an employer doubts the validity of the certification is a second opinion appropriate.

Strike three: Finally, on a related but separate issue, the Court found that the Air Force's willingness to provide Lewis 22 days to return medical certification (instead of the customary 15 days) was reasonable under the circumstances.  Thus, the employee could not argue she did not have enough time to return sufficient medical certification.  Case dismissed.

Insights for Employers

What an outstanding win for employers and, frankly, a vindication to those employers and HR professionals who wisely follow the regulations and appropriately ask for additional information when an employee's certification is insufficient or incomplete.  This case provides a great practical guide for employers when dealing with a difficult or non-responsive employee during the medical certification process:

1. Employers should take note of what basic information the Court found they are entitled to: medical facts supporting the employee's serious health condition; explanation from the health care provider as to the reasons why the employee could not perform the job in question; and whether additional treatments would be required.  As I have shared before, the employer has the right to ask these questions and more of an employee to determine whether the FMLA is at issue, and to insist upon complete and sufficient medical certification.
2. Use the DOL model FMLA forms or forms properly modified by your employment counsel.  Although the DOL forms aren't the best, and modification is appropriate (see post here), using these forms can help avoid liability, as evidenced by this decision, where the Court specifically adopted the requisite inquiries contained in Form WH-380E. 
3. Don't be so quick to think that your only recourse is a second opinion.  As the Court pointed out, when an employer questions the sufficiency of certification, it has the right to obtain the information first through the employee.  The employer is not (yet) required to proceed directly to a second opinion.
4. Keep communicating with your employee.  Where certification is insufficient, tell your employee precisely what information is missing/insufficient and give them time to cure (at least seven days).  Where they fail to cure the deficiency, considering obtaining their permission to talk directly with their health care provider to obtain the information.  In this situation, the employee has two choices: either cure the certification or grant permission for the employer to contact the health care provider.  We have prepared model correspondence and HIPAA-compliant releases for our clients to assist with this process, so communicate with your employment counsel to ensure you have the appropriate documents as well. 

[First, feel free to play the National Anthem if you so desire...]

From the Leadoff Hitter to the end of the lineup, here are my FMLA All Stars: 

It's a bit early in the season to talk trash.  But with these FMLA All Stars in place, it won't be long before your confidence in administering FMLA soars.  Until then, bring on baseball!

Cook County, Illinois

Before you are left aghast at these figures, allow me to point out a sad fact: the Cook County Sheriff is not alone.  In my experience, I find all too many employers that suffer through FMLA absenteeism percentages well above the single digits.  In fact, a new client shared with me that as much as 30% of its workforce is absent on any given workday, the far majority of which is FMLA-related. 

When I hear of FMLA absenteeism figures as high as these, one thing is abundantly clear: FMLA abuse is rampant in that workplace.  Fortunately for employers in this situation, there are several tools available to turn the tide and take back your workplace. 

1.  Require that Employees complete a written leave request form for all absences.  Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system.

2.  Prepare a list of probative questions you ask of all employees when they call in "sick."  I often hear from employers that the FMLA does not allow them to inquire about an employee's medical condition or their need for leave.  (Something to do with HIPAA, they tell me.) Nonsense!  Under the FMLA regulations, employers have the right to obtain information from the employee about their need for leave.  In fact, we have created a model questionnaire for our clients with questions that they can (and should) ask their employees when they call in an absence:

• What is the reason for the absence?
• What essential functions of the job can they not perform?
• Will they see a doctor for the injury/illness?
• Have they previously taken leave for this condition?  If so, when?
• When did they first learn he/she would need to be absent?
• When do they expect to return to work?

3.  Enforce usual and customary call-in procedures.  Also under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer's call-in procedures.  For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.

4.  Check in on the Employee.  A practice in which the employers calls the employee during the absence (or where the employer's policy requires the employee to periodically call in) can go a long way to curbing FMLA abuse.  When the lines of communication open, and the employer maintains contact with the employee, employers are often amazed at the positive results.

5.  Certify ... and Recertify!  Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form.  Unfortunately, all too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave.  Keep your employees honest -- require them to certify their absence and seek recertification at the earliest opportunity.

6.  Surveillance.  Where FMLA abuse is particularly rampant, courts have increasingly been supportive of the use of surveillance to ensure employees are being honest.  Before doing so, however, make sure it is consistent with your personnel policies and any applicable collective bargaining agreements.

7.  Conduct a comprehensive audit of your FMLA policy, procedures and use of leave.  Work with your employment counsel to ensure that your FMLA policy is up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine. 

Making important (and perhaps even significant) changes now will save you money fairly quickly, and much more money in the long run.  More importantly, it may save your business.

Overview

Medical certifications may just be the most effective tool in your arsenal for combating abuse of leave rights under the Family and Medical Leave Act (FMLA). They provide valuable insight into whether a claimed condition qualifies as a serious health condition.

Surprisingly, though, many employers don’t take advantage of this powerful weapon for combating abuse. As a result, they’re left second-guessing whether an employee’s ailment qualifies them for protected leave.

Additionally, if an employee presents you with a doctor’s note for an absence, it’s in your best interests to request a medical certification. Otherwise, if you accept a note stating that an employee can’t work and you later terminate that employee—say, for excessive absenteeism—it’s quite likely that a court will find that you forfeited the right to challenge an assertion that he or she was covered under FMLA in the first place.

Join us on Dec. 21 for an in-depth, 90-minute webinar on how to use medical certifications as a powerful weapon in curbing FMLA abuse. Our speakers – both seasoned labor and employment attorneys – will explain the types of juicy nuggets of information you can learn from completed certifications so you can properly assess whether leave is medically necessary.

You and your colleagues will learn:

• The questions you may ask a medical provider, and the legal line you must never cross when requesting medical information
• How to tweak your FMLA certification form so you get the specific information needed to determine whether the leave is protected under federal law
• Why you should always include a copy of the job description with your request for a certification
• Best practices for handling situations where employees have the “Monday/Friday” call-in syndrome, so you can minimize abuse
• How to request re-certifications in a way that gets you the information you need when the original certification was effectively useless due to vagueness or ambiguity
• When you may ask for second or even third opinions, and how much information you can request on a claimed condition in those cases
• How long employees have to produce an acceptable certification when the need for leave is unforeseeable
• Why your failure to get completed certifications can cause you legal grief
• When you should feel confident that a judge or jury would stand behind your decision to deny leave based on the language provided in a medical certification or re-cert

Thanks to BLR for inviting us to present this program. Visit BLR on the web for more information and to register: http://catalog.blr.com/product.cfm?product=30712000

Read on to find out how to avoid the same mistakes.

LLoyd Stephen Wellman worked for The Sutphen Corporation, which manufactures firefighting equipment, from March 2000 until July 2006. Wellman took intermittent leave from work between March and June 2006 due to arthritis. Around March 9, 2006, Sutphen gave Wellman FMLA paperwork, including a blank medical certification form. 

Wellman claimed that he returned the form on March 22, 2006. The company denied receiving the form, and could not locate a copy in Wellman's FMLA file. On June 9, the company sent Wellman a letter demanding that he return a completed FMLA certification form by June 14, just five days later. The same day Wellman's supervisor issued him a written warning for insubordination, for failing to return the FMLA forms as instructed. Wellman sent three strongly-worded e-mails to the company's president, in which he asserted that the company's threat to discharge him if he failed to return a certification violated the FMLA, that he did not understand what information the company was requiring, and would not be able to provide the information by the June 14 deadline. 

On June 14, Wellman had a doctor's appointment and gave the certification form to his doctor to complete. The doctor did so, and returned it to Wellman at he end of July. However, because Wellman failed to return the form by the June 14 deadline, the company suspended and ultimately fired him for insubordination.

The Lawsuit

Wellman filed suit in federal court, alleging that the company violated his rights under the FMLA. The company filed a motion for summary judgment, arguing that Wellman failed to comply with the FMLA's medical certification requirement. Specifically, under the FMLA regulations, if an employee provides an incomplete medical certification, an employer may deny the employee's request for FMLA leave if the employee fails to cure the incompleteness after specific notice from the employer and a reasonable opportunity to cure the defect. Sutphen argued that even if Wellman had turned in a valid medical certification form in March as he claimed, the form "must be deemed incomplete" because the company had no record of it in its files, and that Wellman was not entitled to FMLA leave because he failed to correct the incompleteness by the June 14 deadline. 

The court rejected this defense, holding first that a certification does not become "incomplete" merely because an employer cannot find it. Thus, if a jury believed Wellman's claim that he provided the completed certification, the fact that the company later could not locate it would not undermine the validity of the certification or entitle the company to demand a new one. Further, even if the incompleteness rule applied, the court held that a reasonable jury could find that the company failed to provide Wellman a reasonable opportunity to turn in a new certification, in that it provided him just five days to do so, and failed to provide any clarification after he complained that he did not understand what was required. 

Insights for Employers:

1. Set a clear, written deadline (at least 15 days after the request) for an employee to return an FMLA certification. If the employee fails to meet that deadline, follow up immediately with a written notice to the employee providing a reasonable period (e.g., seven days) to return the certification and explain why they failed to do so within the original deadline. 
2. If an employee claims he or she provided a certification, but you have no record of it, document that fact. Unless you can definitively prove that the certification was not provided, give the employee a reasonable time period to re-submit the form. If the employee cannot comply by the deadline despite diligent good-faith efforts to do so (e.g., the doctor is out of town), the deadline may need to be extended. 
3. If an employee provides an incomplete or insufficient certification, an employer can be required to correct the deficiencies. However, the employee must be given specific, written notice of the deficiencies, and must be given at least seven days to provide a corrected notice. If the employee needs more time despite diligent good faith efforts, the additional time should be granted. See 29 C.F.R. § 825.304(c). 

There is no question that keeping track of FMLA paperwork and staying on top of employees who fail to return it on time can be burdensome for employers. However, that burden pales in comparison to the cost and inconvenience of defending a lawsuit.