Continuing my series of looking at the new FMLA regulations (part one can be found here), this post will address some of the issues regarding "serious health conditions", light duty work, medical certifications, paid leave, perfect attendance and waivers of claims.
Serious Health Conditions, Continuing Treatments and Chronic Conditions
- One question that often arises is what is a "serious health condition". The regulations clarify the definition of a “serious health condition.” While the period of incapacity remains at more than three consecutive days, the incapacity must be for full days. In addition, the first visit to a doctor must occur within 7 days of the start of incapacity and notably, needs to be "in person".
- Another question arises is what satisfying a "continuing treatment"? For a health care provider to establish a continuing treatment, there must be a minimum of two visits within 30 days of the the first day of incapacity. The health care provider, not the employee, must determine when the second or followup visit should occur.
- For chronic conditions, the new regulations set forth some minimum standards that must be met. The most critical is that the condition must involve treatment at least twice a year.
- The new regulations now state that time spent performing light duty does not count toward FMLA entitlement. This is a change from the current regulations which arguably provided that job restoration rights were available until 12 weeks had passed within the 12-month period (this included all FMLA leave taken and any periods of light duty). The final FMLA regulations provide that the employee’s right to FMLA leave and job restorations rights are on hold during light duty work.
- What happens at the end of voluntary light duty work? The employee has the right to be restored to the position the employee held at the time the employee’s FMLA leave commenced or the employee may use the remainder of his or her FMLA leave entitlement.
Medical Certification Process
- For many employers, the changes the medical certification process may be among the most noticeablee because of changes in the timeframes and process. While the regulations make "sense", it still represents a change in the way employers are used to proceeding.
- First, the regulations will now create different medical certifications for employee and family members. Because employers need more information into the reasons why employees could not perform their jobs, the new regulations set up a new medical certification form when looking at the medical need for leave set up by an employee’s own serious health condition. A separate medical certification form (also set up by the DOL) can be used when employees request leave to care for a family member with a serious health condition. This form seeks information on the type of care being provided by employees.
- Next, it changes the time periods for requesting a certification and responding to such a request. Instead of the two days now provided, the new regulations give an employer five days to request a certification. The employee then has 15 days to provide the requested certification. Additional time may be granted if the employee is using “diligent, good faith efforts” to get the certification and lets the employers know of such efforts. The employer may now get certifications annually for conditions lasting longer than a year.
- What happens if the employer finds that the certification is deficient? Employers must then notify employees of certification deficiencies. The final rule adopts new rules for incomplete and insufficient certifications and procedure for curing these deficiencies. Employers will now need to notify employees in writing of the additional information that is necessary to complete the medical certification and allow employees seven calendar days to provide the additional information. If employees fail to submit a complete and sufficient certification afterwards, the employer can deny FMLA leave.
- For conditions of relatively short duration, employer may get a recertification every 30 days. If the initial certification says that an absence will last longer than 30 days, recertification can be requested when the initial certification says the absence will end or six months, whichever is shorter. Recertification can take place any time the employee requests.
- If the employer requests it, the employee must provide FMLA medical certification even when substituting paid leave. Previously, employees could comply with a lower standard for medical certification standard under the employer’s sick leave plan when the employee substitutes any form of paid leave for FMLA leave. The new rule eliminates this provision because the statute explicitly provides for an employer’s right to a medical certification to confirm a serious health condition.
Perfect Attendance Awards
- Resolving one of the strangest applications of the law, the new FMLA regulations now permit an employer to deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave. Word of caution though: the employer can only do this if the employer treats employees taking non-FMLA leave in an identical way.
Paid Leave Substitutes and Intermittent Leave
- The new regulations limit the ability of employees to substitute paid leave for unpaid FMLA leave. Under the new rules, an employer’s existing leave policy will determine an employee’s right to substitute paid leave regardless of the type of leave.
- The employer must account for the intermittent or reduced schedule leave using an increment that is at least the same as the time period it uses to track other forms of leave — so long as it is not greater than an hour. Thus, if an employer’s payroll system only keeps track of attendance by the hour, an employer is not required to account for FMLA in 15 minute intervals.
FMLA Waivers and Releases
- Over the years, courts have differed on whether employees could waive or release existing claims under the FMLA in a settlement agreement (including separation agreements). The new regulations cnow state that the DOL will allow employees to waive past claims under the FMLA and may do so without first obtaining the approval of DOL or a court. This is a common sense regulations that allows both the employer and employee to resolve claims without unnecessary government interference.
In coming posts, I’ll discuss some other developments, the military leave provisions, and helpful steps employers can take now to get ready for the changes on January 16, 2009 (the date the regulations take effect).