The Proposed FMLA Regulations and Their Effect On You-

Part III: Certification

Over the last two weeks, we have been providing summaries of a few of the proposed revisions and clarifications contained in the Department of Labor's (DOL) proposed revisions to the regulations implementing the Family and Medical Leave Act of 1993 (FMLA). This week, we continue the series by focusing on revisions and clarifications related to certification.

Statement of essential job functions

Under the proposal, an employee still is not eligible for FMLA leave unless a health care provider finds that the employee is unable to work at all or unable perform one or more of the essential functions of his or her job. The proposal, clarifies that an employer, in requiring certification from a health care provider, may provide a statement of the essential functions of the employee's position for the health care provider to review. Moreover, the proposed regulation states that the employer may require that the health care provider's medical certification specify what essential functions the employee cannot perform.

Effect on you

If the proposal is adopted, you will clearly be authorized, when requesting medical certification of the need for FMLA leave, to provide an employee's doctor with a statement of the employee's essential job functions and require that the doctor specify what essential functions the employee cannot perform.

"Complete and sufficient" medical certification-Opportunity to cure

Under the proposal, if an employee provides an incomplete or insufficient medical certification, the employer must inform the employee in writing what additional information is necessary and give the employee 7 calendar days to cure the problem. If the employee does not cure the problem, then the employer may be able to deny the request for FMLA leave. However, in order to do this, the employer must have advised the employee of the consequences of a failure to provide adequate certification at the time the employer requested the medical certification.

Effect on you

If the proposal is adopted, you will be required to give employees 7 calendar days to cure an incomplete or insufficient medical certification. You will also have to revise the form you use to request such medical certification to highlight the consequences of a failure to provide an adequate medical certification. If you do not do this, you may not be able to deny the employee's request for leave for failure to provide a timely certification.

"Complete and sufficient" medical certification-Employee's responsibility to provide authorization forms

The proposal clarifies that it is the employee's responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization in order for the health care provider to release a complete and sufficient certification to support the employee's FMLA request. The preamble to this section of the proposal explains that an employer has the right to require sufficient information and that, if employee does not fulfill his or her obligation to provide such information on request (even if the employee must sign a HIPAA release in order for the health care provider to provide that information), then the employee will not qualify for FMLA leave.

Effect on you

If the proposal is adopted, you will no longer be required to accept medical certification forms that omit a description of the serious health condition at issue and instead state "HIPAA," or fight with employees who say that their doctor will not release the information due to HIPAA. Instead, you will be able to require that the employee cure the certification within 7 calendar days, even if the employee must provide his or her health care provider with a HIPAA release in order to obtain the necessary certification. In addition, if an employee's medical certification is incomplete or insufficient because he or she has failed to provide his or her health care provider with any necessary authorization form, you may be able to deny the employee's request for FMLA leave (provided that you give the employee the opportunity to cure the certification, as explained above).

Authentication and clarification of medical certification

Under the current regulations, employers may not contact health care providers directly to seek authentication or clarification of a medical certification. Instead, they must make contact through a health care provider working for the employer. Under the proposed regulations, an employer may contact a health care provider directly to clarify or authenticate a medical certification form. "Authentication" is defined as providing the health care provider with a copy of the certification and requesting verification that the information contained on the form was completed and/or authorized by the health care provider who signed the document. "Clarification" is defined as contacting the health care provider to understand the handwriting on the certification or to understand the meaning of a response. Before an employer may contact a provider to clarify or authenticate a certification, it must give the employee the opportunity to cure any deficiency in the certification, as explained above. If the certification is still incomplete or insufficient, the employer may then authenticate a medical certification form without the employee's permission. When contacting a health care provider to authenticate a certification, the employer may not ask for additional medical information. If an employer instead elects to contact a health care provider to clarify the certification, any such contact must comply with the requirements of HIPAA. This means that, before the health care provider will be able to discuss the certification with the employer, the employee will likely be required to sign an authorization form. When contacting a health care provider to clarify a certification, an employer may not request information beyond that required by the certification form.

In addition, the current regulations state that an employer may "delay" the taking of FMLA leave if an employee fails to provide medical certification in a timely manner. The proposed regulations clarify that, if the employee fails to provide a timely medical certification, then any leave during the time period that the certification was "delayed" is not FMLA-protected and that the employer may deny FMLA coverage until the required certification is provided.

Effect on you

If the proposal is adopted, you will be able to authenticate and clarify medical certification forms directly, without having to rely on another health care provider. However, you will need to give employees a chance to cure an insufficient or incomplete certification before doing this. The ability to contact health care providers directly should streamline the authentication and clarification process. While you will also need to be cognizant of the requirements of HIPAA when making such contact, the proposal will also make it clear that your employees will be required to sign a HIPAA release form when doing so is necessary for you to obtain a sufficient and complete medical certification form. Importantly, the proposal does not require you to contact a health care provider to authenticate or clarify a medical certification. Instead, it states only that, if an employee's certification is still incomplete or insufficient after he or she has been given the opportunity to cure, an employer may contact the health care provider to authenticate or clarify the certification. As explained above, if the employee fails to provide a complete and sufficient certification after being given 7 days to cure the problem, the proposal clearly authorizes you to deny the employee's request for leave.

In addition, if the proposal is adopted, no substantive change in the law will occur regarding your ability to deny FMLA leave until an employee provides the required medical certification. However, when an employee fails to provide a timely medical certification, you will have even clearer authority to deny the employee's request for FMLA for all time that passes during the "delay" in providing medical certification. That is, it will be clear that you do not have to retroactively grant the employee's request for FMLA leave after the employee provides a medical certification.

Second- and third-opinions

The proposal does not change the process for obtaining a second- or third-opinion. However, the proposal adds language requiring the employee to authorize release of relevant medical information regarding the condition for which leave is sought from the employee’s (or family member’s) health care provider to a second- or third-opinion provider.

Effect on you

If the proposal is adopted, the process you use to obtain second- and third-opinions will remain unchanged. However, your employees will be required to facilitate this process by authorizing the release of relevant medical information to your second- or third-opinion provider.

New certification for long-term conditions

The proposal codifies the provisions of a DOL Wage and Hour Opinion Letter, which states that employers may require annual medical certifications in those cases in which the serious health condition extends beyond a leave year.

Effect on you

If the proposal is adopted, you will have clear authority allowing you to require annual medical certifications from employees whose health conditions extend beyond a leave year.

Recertification of the need for FMLA leave

Under the current regulations, employers may request recertification of the need for FMLA leave no more often than every 30 days, absent certain special circumstances. However, if the time period specified by the health care provider for the duration of the incapacity or its treatment is longer than 30 days, an employer may not request recertification until the minimum duration has passed (again, absent certain special circumstances). The proposal keeps the current rules on the timing of requests for recertification. However, the proposal adds language stating that, in all cases, recertifications may be requested every six months in connection with an absence by the employee. The preamble to this provision explains that this language is intended to apply in "circumstances in which the certification indicates that the condition will last for an extended period of time." The preamble also defines "extended period of time" to include "not only specific months or years (e.g. one year) but certified durations of 'indefinite,' 'unknown,' or 'lifetime.'" The proposed regulations also provide that, when requesting a recertification, an employer may give the health care provider a record of the employee's absence pattern and ask the provider whether the serious health condition and need for leave is consistent with such a pattern.

Effect on you

If the proposal is adopted, you will be able to request recertification of the need for leave every six months in connection with an absence, even if the employee's initial medical certification indicates a duration of more than six months, or simply says "indefinite," "lifetime," or "unknown." This is a negative development for employers. Under the current understanding of the regulations, a certification that says "indefinite" or "unknown" has been interpreted not to contain a minimum duration and, therefore, allow for recertification every 30 days. In the proposal, the DOL seems to be taking the position that, if a certification contains such language, an employer must wait six months before requesting a recertification. The DOL is, however, requesting comments on this proposal.

In addition, if the proposal is adopted, you will have the DOL's express permission to provide a record of the employee's absence pattern to the employee's health care provider when requesting a recertification, which may allow you to reduce some abuse of FMLA leave. It is important to note that, unlike the new annual certification rule described above, you may only request recertification in connection with an absence. In addition, unlike the new annual certification rule, you may not obtain a second- or third-opinion after obtaining a recertification from an employee.

Fitness-for-duty certification

As under the current regulations, employers still generally may not require an employee to provide a fitness-for-duty certification when returning from intermittent leave. However, the proposed regulations state that an employer may require a fitness-for-duty certification every 30 days if the employee has used intermittent leave during that time and reasonable safety concerns exist regarding the employee's ability to perform his or her duties, based on the serious health condition for which the employee took such leave.

Effect on you

If the proposal is adopted, you still generally will not be able to require a fitness-for-duty certification from an employee who is returning from intermittent leave. However, if a reasonable safety concern exists regarding the employee's ability to perform his or her duties, you will be authorized to require such a certification.

If you have questions related to these proposed regulations, please contact a member of Ice Miller's Labor and Employment Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.