FMLA Insights - Guidance & Solutions for Employers

In a flurry of activity at the end of 2011, several employers contacted me to determine whether the DOL notice and certification forms still were valid, even though they contain an expiration date of December 31, 2011.  In short, employers may continue to use the DOL's FMLA forms, although consider our suggestions below before using these standard DOL forms.

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.

In this opening weekend of major league baseball, hope springs eternal for every baseball fan.  In honor of my beloved Chicago White Sox, I offer an FMLA lineup card below that from top to bottom will help employers stay atop the pennant race throughout the year. 

[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: 

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Some of the most common questions thrown at us by clients involve how to effectively navigate the medical certification process.  Join us on Tuesday, December 21, at 12:30 p.m. CST, for a webinar entitled "FMLA Certifications: How to Effectively – and Legally – Use This Weapon To Combat Abuse." 

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

If the need to keep careful track of FMLA paperwork was not already obvious, a recent decision from a federal district court in Ohio emphasizes the perils of misplacing an employee's FMLA certification. Wellman v. Sutphen Corp.

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

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