Family and Medical Leave Act: compliance reminders for employers

Under the Family and Medical Leave Act (FMLA), businesses with 50 or more workers in a 75-mile radius, must provide up to 12 weeks of unpaid leave for a qualifying individual or family member’s serious medical conditions or the birth, adoption or foster care placement of a child. There are also certain benefits protections and reinstatement rights for employees with 12 months of service who have worked 1,250 hours.

Requests for information related to an employee’s request for FMLA leave, or by an employer attempting to determine whether the leave needed or being taken qualifies as FMLA leave, are restricted to communicating with the employee. Communications between the employer and the employee’s health-care provider are not permitted, unless the contact is related to an employee’s workers’ compensation claim and the treatment provider being contacted is the employee’s workers’ compensation healthcare provider. This means that questions about the nature, extent, duration, etc., of a condition underlying an employee’s request for FMLA leave may only be addressed with the employee.

If the adequacy of the medical certification provided by the employee is being questioned, the employer may, after obtaining the employee’s permission to do so, have a health-care provider of its choosing contact the employee’s health-care provider to clarify information in the medical certification or to confirm that it was provided by the health-care provider.

This inquiry, however, may not seek additional information regarding the employee’s health condition or that of a family member.

Medical certifications

Employers frustrated by efforts to obtain adequate medical certifications from an employee on leave often forget their obligation to “advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency.”

The consequences for doing so are amply demonstrated in the U.S. District Court, District of New Hampshire case Jimenez v. Velcro USA Inc.

In Jimenez, the plaintiff was terminated for poor attendance after failing to provide medical certification that certain absences that he claimed were for medical reasons. The medical certification the employee provided, while confirming a present need for leave, did not cover the earlier absences that were being counted against him as “unexcused.” The court found that the employer had failed to give the employee a reasonable opportunity to cure the deficiencies in the medical certification he provided. The court explained that the law [§ 825.305(d)] applies “where any type of deficiency in a medical certification operates to defeat an employee’s request for medical leave, including a lack or shortage of information.”

Thus, it was unable to find that the employer’s termination was permissible.

Employers are urged to communicate in writing and with sufficient specificity any deficiencies in a medical certification and be clear about the period to cure and the consequences for failing to do so to the affected employee. It will be the employer’s burden to show compliance with this section of the FMLA.

There continues to be confusion about when an employer can request medical recertification when a worker suffers a long-term or chronic condition, such as migraine headaches, diabetes or asthma, which is ongoing and typically necessitates unforeseen sporadic absences.

The U.S. Department of Labor recently issued an opinion letter that offers guidance on recertification requests under these circumstances. As a general rule, in situations involving permanent or long-term conditions, such as those referenced above, even with no minimum duration of incapacity specified in the medical certification, recertification may only be requested every 30 days, and then only in connection with an absence.

More frequent requests for recertification can be made if circumstances have changed significantly, or the employer receives information that casts doubt on the continuing validity of the earlier certification. The department also has opined that, provided there is no evidence of a medical reason for the timing of an absence, a pattern of Friday/Monday absenteeism could constitute “information that casts doubt upon the employee’s stated reason for the absence,” thus allowing a recertification request more frequently than every 30 days.

The department noted that the employer may inform the employee’s health-care provider about the absence pattern and ask, as part of the recertification process, whether this pattern is consistent with the employee’s health condition. The department, however, cautions “an employer’s direct contact with the employee’s health-care provider is prohibited, but this question could be added to the medical certification form given to the employee for completion by the health-care provider.”

Employers who are experiencing difficulties in administering FMLA leave for persons with permanent or chronic conditions of an indefinite duration and who have sporadic unforeseen absences associated with them are encouraged to move cautiously and obtain guidance from legal counsel or another HR professional.

Andrea Johnstone, co-author of “Labor and Employment Law in New Hampshire,” is a shareholder-director at the Concord law firm of Gallagher, Callahan & Gartrell. She can be contacted at 800-528-1181.