To answer your questions on the proposed Family and Medical Leave Act (FMLA) regulations, we've asked our expert, Matt Morris, a legal consultant at Hewitt who specializes in employment law matters, to respond with the most current developments. If you'd like to ask a question regarding FMLA or on any pressing human resources challenges you might be facing, email us, and we'll share responses to select questions on a regular basis.
PODCAST:
Learn more about FMLA eligibility issues and how the DOL's proposed FMLA rules will impact employers in this podcast featuring Matt Morris. Running time for this podcast is 13 minutes 16 seconds; file size is 3 MB. If you experience a slow connection, please right-click this link and download the podcast.
Question: Does granting a "reasonable accommodation" under the Americans with Disabilities Act (ADA) ever become a factor during an intermittent FMLA leave?
Answer: Yes, you could have both the ADA and the FMLA applying to the same intermittent leave. Perhaps the more important question is whether an employee can take leave under the ADA when he/she is not FMLA eligible. The answer to that question is yes, and employers must be sure to consider whether an employee who is ineligible for or has exhausted his/her FMLA time might have an ADA-qualifying disability that would qualify him/her for additional leave as a "reasonable accommodation" under that law.
Question: Can an employer require a doctor's note stating each absence was specifically for this condition? If so, who pays the copay?
Answer: Under the FMLA regulations, an employer cannot ask for a note regarding each absence because each absence is considered part of one FMLA period as opposed to separate leaves. The certification for the intermittent leave covers all intermittent absences that comprise that leave. That said, employers are allowed to request that employees recertify their leaves in certain situations (e.g., circumstances may have changed or something casts doubt upon the reason for leave). With regard to the copay for the doctors' visits, the guidance clearly puts the responsibility on employees for any charges by their health care providers. Still, we are hearing more and more that doctors are charging their patients to complete the health care provider forms, and that employees are relaying their distress to their employers.
Question: Does an intermittent FMLA leave expire after 12 months or is it ongoing?
Answer: The DOL's position is that employer can consider a certification of health care provider form to expire at the end of 12 months regardless of whether the condition outlasts the year (e.g., a chronic illness). While the current guidance comes from a 2005 opinion letter, the DOL has included this position within its revisions to the FMLA regulations. The final regulations are expected to be issued within the coming months. Keep in mind that in certain circumstances, employers also have the right to request recertification during a certified period of time.
Question: When do the new requirements need to be reflected in our administrative practices and by when should we have our policies updated?
Answer: With regard to the revisions to the FMLA regulations, keep in mind that these changes are currently only proposed. They are not yet in effect. And, according to the DOL, they received over 4,000 comments regarding the proposals so it is likely that some of the proposals will be modified. As such, it makes sense for employers to wait until the final regulations are in effect before changing their policies and practices. However, with regard to the new family military additions to the FMLA, most employers are revising their policies now to account for these provisions. These are changes to the law itself that took effect upon the President's signing the bill in January 2008. With regard to employee notice, the DOL recently issued a sample poster for employers to use.
Question: Does the DOL require an employer to use the Certification of Healthcare Provider form to certify the serious health condition? My company has its own medical form that is used for disability management purposes and to justify paying sick time. We run FMLA concurrently with sick time so we use our form for pay and periodic updates. Can we just use our company form or do we need to use the DOL form?
Answer: You do not have to use the sample WH-380 form provided by the DOL. In fact, many of our leave outsourcing clients use a simplified version of the form that we created. Section 306 of the regulations clarifies that the DOL's form is "optional" and that an employer only need follow the rules outlined in that section. But, the section also mentions that "no additional information may be required" besides the elements enumerated in this regulation.
That leads to the second part of this question regarding the use of the form to cover disability management as well. While some information listed in Section 306 could be pertinent to an analysis of short-term disability qualifications, employers must be careful to exclude any additional information gathered for purposes the disability pay request.
More Information
For more information on FMLA, visit FMLA Resources for Employers. As the status of the FMLA regulations change, we'll be providing updates in this column. Stay tuned!
About Our Expert
Matt Morris is a legal consultant at Hewitt. He specializes in employment law matters and is a thought leader regarding compliance strategy and administration for the FMLA and related state leave laws. Matt has spoken and written about challenges with FMLA compliance, and last September, at the request of the Department of Labor, he participated in a roundtable discussion about the FMLA.
