Certification

Among the key provisions significantly changed by the new FMLA regulations are those dealing with medical certification. These include:

• An employee now has 5 business days to furnish a certification from a healthcare provider, with an outside limit of 15 days within which the employee must respond to all requests for certification.
• Once the employer receives certification, it must notify the employee if certification is insufficient and explain why. The employee then has 7 calendar days to correct the problem. That time frame may be extended if, despite reasonable good faith efforts, the employee is unable to cure the deficiency.
• An employer may require new certification when the employee’s medical condition lasts beyond the leave year.

Ready or not, the new FMLA regulations take effect on January 16. Join us December 5 for a special audio conference and learn what you need to know—and do—to get ready. Find out more.

Content of Medical Certification for Serious Health Conditions

• The Department of Labor (DOL) declined to list medical facts that must be included in certification (because they vary widely from case to case). DOL said it is not appropriate to require diagnosis as part of medical certification.
• Employees should not be required to execute a release for employers to obtain medical information directly from doctors as part of the FMLA certification process.
• Two new optional certification forms are created in the final rule: One for an employee’s own serious health condition, and one to be used when the need for leave is to care for a family member with a serious health condition.
• An employer may, but is not required to, provide a list of essential functions when requesting medical certification. If the employer does not, the healthcare provider may rely on the employee’s description of his or her job functions.

Failure to Provide Certification

• An employer may “deny” FMLA leave until the required certification is provided. Current regulations only allow employers to “delay” FMLA leave.
• Employees must be given at least 15 calendar days to provide the requested certification, and they are entitled to additional time when they are unable to meet that deadline despite their diligent, good-faith efforts.
• Any absences that occur during the period in which an employer has the right to deny FMLA protection due to the failure to provide timely certification may be treated under the employer’s normal attendance policies.
• Employers may deny FMLA protection when an employee fails to provide a timely certification or recertification, but they are not required to do so. Employers always have the option of accepting an untimely certification.

Changes Take Effect Next Month

These changes, together with the revisions we covered yesterday, barely scratch the surface of the new and revised requirements contained in the hundreds of pages comprising the final regulations. And the effective date is just 45 days away.

Rather than panic, we suggest that you join us on December 5 for a special audio conference, Family and Medical Leave: Sweeping New FMLA Regs Finalized; What Employers Need to Know—and Do—Now. You and your colleagues will learn:

• In plain English, what’s changed and what you need to do in response to those changes
• The new rules on medical certifications and doctor visits for employees with chronic medical conditions
• How to interpret and apply both the new and previously released changes that apply to military families
• When, under the new rules, you’re allowed to ask for a “fitness-for-duty” evaluation
• The new restrictions on your supervisors (which were designed to enhance employee privacy)
• What the new changes mean for your perfect attendance programs
• What you can do—and what you should never do—when reviewing and investigating potential FMLA abuses by your workers
• The changes to the notice requirements—and why they’re considered good news for employers
• The steps you should take right now to prepare for the January 16 deadline

The new changes to the FMLA comprise hundreds of pages. Get a practical, plain-English analysis at our December 5 audio conference. Find out more.

Your speaker will be Andrew M. Dansicker, Esq. Dansicker founded his law practice in Maryland to represent employers in virtually every facet of employment law, from disability and leave issues to discrimination claims and wage and overtime matters. He has defended clients in state and federal courts and before numerous administrative agencies. Before forming his own firm, Dansicker served as a partner at a major Baltimore law firm and as a judicial law clerk for a federal district court judge. He also founded the Maryland Employment Lawyer Blog, and he earned his law degree from Columbia University.

Remember—the date is December 5, 2008. The time, 1:30 p.m. to 3 p.m. (Eastern Time—adjust for your time zone). As with all BLR audio conferences, one fee trains all the staff you can fit around a conference phone, you can get your (and their) specific phoned-in or e-mailed questions answered in an extensive Q&A that follows the presentation, and your satisfaction is assured or you get a full refund.

What if you can't attend on that date? Simply preorder the conference CD. For more information on the conference and the experts presenting it, to register, or to preorder the CD, go here. We'll be happy to make the arrangements.