The Family and Medical Leave Act (FMLA) changes, in effect less than a month, will probably help employers in the long run. But for now, there’s a welter of tricky little changes to cope with. Here are more tips and news about an updated, comprehensive guidance tool.
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.
FMLA changes—the #1 hassle of 2009. BLR’s compliance guide is ready to help now—go here for information or to order.
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.
Still a little shell-shocked by the new rules? Frankly, it’s an almost overwhelming task to get in compliance with these far-reaching changes to the FMLA. You’re going to need a helping hand. Good news! BLR’s editors have gone into overdrive to get your comprehensive compliance guide ready.
BLR’s hot-off-the-presses Family and Medical Leave Act Compliance Guide simplifies the frustrating and confusing complexities of the FMLA, so you know exactly how to comply in every situation.
An avalanche of changes in the FMLA—Are you ready? Order BLR’s comprehensive guidebook, Family and Medical Leave Act Compliance Guide. Get more information.
It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.
The Family and Medical Leave Act Compliance Guide includes:
- Leave law overview
- All the new forms and advice on how to use them
- Practical guidance on implementing all aspects of the new rules
- Analysis of federal and state laws, what they require, and how they interact
- Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
- Recordkeeping and reporting requirements
- Reasonable accommodation
- Sample policies and forms
Plus - A quarterly newsletter and updates, to make sure you stay in compliance as any changes come about.
I always wear 2 hats when I read info on FLMA. As the Practice Administrator of a physician practice, hat #1 is “HR Director” for our 20 employees. However, my role Practice Administrator gives me a different perspective on the “Medical Fitness” requirements. Although employers may require FLMA certificates form their employees, nothing I have seen requires the physician to complete those forms (or to do so for free). I’d be intersted in knowing from your readers if they (or their employees) pay to have the forms completed and, if so, what a reasonable fee is.