Medical Information Now Easier to Obtain: In the final rule, the Department of Labor (DOL) adopted a change that allows employers to contact the employee's healthcare provider directly, but for two purposes only—clarification or authentication of the medical certification. Employers may not request additional information beyond what is included in the certification form.
The DOL also added a requirement that the employer's representative contacting the employee's healthcare provider must be an HR professional, a leave administrator, or a management official, and not the employee's direct supervisor.
The employee is not required to permit his or her healthcare provider to communicate with the employer. However, if the employee denies the employer permission and doesn't otherwise clarify an unclear certification, the employer may deny the designation of FMLA leave.
Before making any contact with the healthcare provider, the employer must provide the employee an opportunity to resolve any deficiencies in the certification.
Fitness for Duty Certification Is OK: The final regulation clarifies that employers may require a fitness-for-duty certification to address an employee's ability to perform essential job functions.
However, if the employer does have such a requirement, the employer must provide the employee with a list of those essential job functions no later than the “designation notice” and specify in the designation notice that the fitness-for-duty certification must address the employee's ability to perform those essential functions.
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Substitution of Paid Leave: The rules now clarify that an employee's right to substitute accrued paid leave is limited by the terms and conditions under which the leave is accrued, as long as those terms are nondiscriminatory.
That means that an employer may limit substitution of paid sick, medical, or family leave to those situations in which the employer would normally provide such paid leave (e.g., such policies may restrict the use of paid leave only to the employee's own health condition or to specific family members).
Employers must, however, allow substitution of paid vacation, personal leave, or "paid time off" for any situation covered by the FMLA.
In all cases, however, the normal procedural rules under which the leave was accrued apply—unless waived by the employer—regardless of the type of paid leave substituted. For example:
If an employer's paid sick leave policy prohibits the use of sick leave in less than full-day increments, employees would have no right to use less than a full day of paid sick leave regardless of whether the sick leave was being substituted for unpaid FMLA leave. Employers may choose to waive such procedural rules.
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