Pennsylvania FMLA Update

The U.S. Department of Labor has introduced important changes to the FMLA regulations that affect employers in Pennsylvania and nationwide.

The medical certification process for employees taking FMLA leave (Family and Medical Leave Act) has been streamlined. Under FMLA, a worker can take up to 12 weeks of unpaid, job-protected leave per year for a “serious health condition” of their own, or to care for a family member (son, daughter, parent or spouse) who’s ill.

Pennsylvania employers are legally allowed to require certification of a “serious health condition” from the employee’s healthcare provider.

Depending on the situation, the employer can request a second or third opinion, but at the employer’s expense. Plus, the employer can contact the healthcare provider for clarification of the medical certification form. Both employer and healthcare provider must adhere to the HIPAA privacy regulations.

Under the new FMLA regulations, the employer can request a recertification of an employee’s ongoing medical condition at least once every six months. Once the employer “requests” the recertification, the worker must comply or face the possibility of being legally denied FMLA leave.

The new regulations prevent companies from asking healthcare personnel from any information that is not on the U. S. Department of Labors’ WH-380 form. Though the form has recently been updated, it is still optional. Healthcare providers may use this form to specify the worker’s “serious health condition”, but are not legally required to do so.

The changes in FMLA include a formal provision for companies to request a yearly certification for employee’s with ongoing conditions. For example, if Mary suffers from migraine headaches and periodically needs to take unscheduled FMLA leave, an employer can request the condition be recertified each year.

This change provides more specific classifications for a worker’s condition. Previously a company could request recertification in only two scenarios: when a worker takes over a month of FMLA leave and is still absent, and when the physician puts a time limit on the worker’s condition. Plus, confusion often resulted from a physician classifying a worker’s condition as “lifetime” or unknown.

The updated FMLA regulations require more specific information, plus allow companies to more easily request recertification.

More Pennsylvania FMLA Changes

Recently, the U. S. Department of Labor proposed several updates to the FMLA (Family and Medical Leave Act) regulations.

The changes will go into effect on April 11, 2008. Until then, all interested parties are welcome to the comment on the changes. Once the regulations are published in the National Register, they become law.

Included among the FMLA changes are policies regarding “fitness-for-duty” certifications.

Under the current regulations, employers can require workers on FMLA leave to provide medical certification that they are able to return to work. This policy must be applied evenly to employees in similar situations. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based on sex, color, religion, country of origin or gender. Additional federal laws protect workers from discrimination due to pregnancy, disabilities and age (over 40).

The proposed changes to the FMLA will affect the “fitness-for-duty” rules in two ways. The first update allows employers to request the fitness certification to address the employee’s specific job functions. Consider John who works in the warehouse and lifts heavy equipment. Before he returns from FMLA, the company can require him to provide certification that he is physically able to lift heavy objects.

The second change in the rules for “fitness-for-duty” pertains to employees who take FMLA leave intermittently. Under the new regulation, the company can require fitness certification each time the employee takes FMLA leave. For instance, Casey drives a truck and is prone to migraine headaches. His employer can legally ask for fitness certification each time Casey takes leave, because migraines can affect a person’s vision. A truck driver with troubled vision is a safety hazard. This change may also help to reduce abuse of FMLA leave, too.

If safety isn’t a concern, however, the employer cannot legally require a “fitness-for-duty” certification. If Amanda is pregnant and takes intermittent FMLA leave to deal with morning sickness (which has been certified by her physician), the company can not demand a fitness certification each time she takes time off. Her condition isn’t a safety-related issue.

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