February 07, 2014 Review of the Family Medical Leave Act

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KEEPING YOU INFORMED…

With the recent increase in on-site investigations by the United States Department of Labor (“the DOL”) concerning employer compliance with the Family and Medical Leave Act (“FMLA”), we would like to clarify some of the law’s requirements that cause confusion among many employers. 

Generally, the FMLA requires covered employers to grant eligible employees up to 12 workweeks per 12-month period of unpaid, job-protected leave for the following family and/or medical reasons:  (1) the birth of a child or to care for the child within one year of birth; (2) the placement with the employee of a child for adoption or foster care or to care for the child within one year of placement; (3) to care for a spouse, child or parent with a serious health condition; (4) a serious health condition of the employee which makes the employee unable to perform the functions of his/her position; and (5) any qualifying exigency arising out of the fact that the employee’s spouse, child or parent is on covered active military duty in the Armed Forces (or has been notified of an impending call or order to covered active duty).  In addition, an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember’s serious injury or illness.

The FMLA regulations require employers to provide employees with specific information regarding their eligibility and rights pursuant to the FMLA.  The DOL provides standardized forms to ensure employer compliance with the FMLA.  While the FMLA does not require use of the DOL’s forms, the forms cover all required information and we thus recommend use of those forms (available at http://www.dol.gov/whd/fmla). 

The FMLA also requires employers to display a poster in conspicuous locations that summarizes the FMLA’s provisions and tells employees how to file a complaint for a violation of the FMLA.  The DOL provides a poster, last updated in February 2013, which includes all of this information (available at http://www.dol.gov/whd/regs/compliance/posters/fmla.htm). 

Eligibility Notice and Rights and Responsibilities Notice

Within five business days of an employer’s receipt of an employee’s FMLA request or the employer’s receipt of knowledge that the employee’s leave may be for an FMLA-qualifying reason, the employer must inform the employee of his/her eligibility to take FMLA leave and related rights and responsibilities with respect to the leave.  This can be accomplished by providing the employee with the DOL’s Notice of Eligibility and Rights & Responsibilities form (available at http://www.dol.gov/whd/forms/WH-381.pdf) or the equivalent information.  This form may include a request for certain documentation to help the employer determine whether the employee’s absence qualifies as FMLA leave.   

Designation Notice

Within five business days of the employer’s receipt of enough information to determine whether the leave is being taken for a FMLA-qualifying reason, the employer must provide the employee with the DOL’s Designation Notice (available at http://www.dol.gov/whd/forms/WH-382.pdf) or the equivalent information, indicating whether the leave is FMLA-qualified.  The Designation Notice must also indicate whether the leave will be paid, whether other forms of leave will be charged (e.g., personal, sick and/or vacation time) and whether the employee will be required to submit a fitness-for-duty certification before returning to work.

Fitness-For-Duty Certification

An employer may adopt a uniformly applied policy or practice that requires all similarly situated employees (e.g., same occupation or same serious health condition) to provide a fitness-for-duty certification as a condition of the employee’s return to work from FMLA leave due to the employee’s own serious health condition.  The general requirements regarding these certifications include:

  • An employer may only require a fitness-for-duty certification with regard to the particular health condition that caused the employee’s need for the FMLA leave.
  • An employer may not require a fitness-for-duty certification for each absence taken on an intermittent or reduced leave schedule unless a reasonable safety concern exists regarding the employee’s ability to perform his/her duties based upon the serious health condition for which the employee took the leave.  In the latter case, the employer may only require a fitness-for-duty certification once every 30 calendar days.  The employer must inform the employee of this requirement at the time it issues the Designation Notice. 
  • If the employer will require a fitness-for-duty certification, then the employer must so indicate in the Designation Notice.  If the employer handbook or other written documents (if any) describing the employer’s leave policies clearly provide that a fitness-for-duty certification will be required in specific circumstances (e.g., by stating that the certification will be required in all cases of back injuries for employees in a certain occupation), the employer is not required to provide written notice of the requirement with the Designation Notice, but must provide oral notice by no later than when the employee is given the Designation Notice.
  • The fitness-for-duty certification must be completed by the employee’s health care provider and must certify that the employee is able to resume work.  If the employer wishes to also require that the fitness-for-duty certification address the employee’s ability to perform the essential functions of the employee’s position, then the employer must so indicate in the Designation Notice and provide the employee with a list of his/her essential job functions by no later than with the Designation Notice. 
  • The employee is required to participate and cooperate in the fitness-for-duty certification process.  This includes providing the employer with a complete and sufficient certification or sufficient authorization to the employee’s health care provider to provide the necessary information directly to the employer.  A certification is considered “incomplete” if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is “insufficient” if the employer receives a completed certification, but the provided information is vague, ambiguous or non-responsive. 
  • After the employer has given the employee an opportunity to cure any deficiencies in the fitness-for-duty certification, the employer may, with the employee’s permission, contact the employee’s health care provider to clarify and authenticate the certification (contact may only be made by a health care provider, human resources professional, leave administrator or management official, but not the employee’s direct supervisor).  Clarification may only be requested with respect to the serious health condition for which the FMLA leave was taken.  The employer may not delay the employee’s return to work while it contacts the health care provider. 
  • An employer may not require a second or third opinion with respect to a fitness-for-duty certification.
  • An employer may delay an employee’s return to work until the employee submits a required fitness-for-duty certification. 
  • An employer cannot delay an employee’s return to work or condition the employee’s return on the employee’s submission of a fitness-for-duty certification if the employer failed to include a requirement for the certification in the Designation Notice or failed to otherwise communicate the requirement to the employee in accordance with the procedures set forth above.

FMLA Policies

An employer’s FMLA policy may need to be modified to comply with the fitness-for-duty and/or other FMLA provisions.  Some of these modifications may have to first be negotiated with the employer’s union(s).  We recommend that employers with unionized employees seek legal advice prior to changing their FMLA policies.   

Please contact us if you have any questions about the FMLA or would like assistance reviewing and/or modifying your FMLA policy.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014

1 A “covered employer” is an employer with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year (public agencies and public and private elementary and secondary schools are covered by the FMLA regardless of their number of employees, except that their employees must meet all of the eligibility requirements in order to be entitled to FMLA leave). 

2 An “eligible employee” is an employee of a covered employer who:  (1) has worked for the employer for at least 12 months; (2) has worked for the employer for at least 1,250 hours in the last 12 months; and (3) is employed at a worksite where 50 or more employees are employed by the employer within a 75-mile radius of the worksite.

3 “Reasonable safety concern” is defined as a reasonable belief of significant risk of harm to the individual employee or others.  In determining whether a reasonable safety concern exists, the employer should consider the nature and severity of the potential harm and the likelihood that it will occur.