Department of Labor FMLA Section 825 Revised 2009
DOL Fact Sheet Final Rule
DOL Page on FMLA
Final Rule 2008 Changes
FMLA Employee Service Talk 2009
FMLA Guide University of Iowa Labor Center 2009
FMLA Rules and Laws
How to Apply you FMLA Rights (APWU Book)
Human Resources letter FMLA 2009
Leave and Documentation
Top 10 FMLA Violations
WH 1420 FMLA 2009 Poster
FMLA Forms, Samples, and stewards info
Family and Medical Leave Act (FMLA) Forms
These forms provide supporting documentation for leave requests covered by the Family and Medical Leave Act (FMLA). The Postal Service has stated that these forms are acceptable for use by managers to approve or disapprove FMLA leave requests.
Click on the light blue link below for forms
APWU Form 1 - Employee Certification of Own Serious Illness
APWU Form 2 - Certified by Employee's Health Care Provider for Employee's Serious Illness.
APWU Form 3 - Health Care Provider Certification of Employee's Family Member Illness.
APWU Form 4. Notice of Need for Intermittent Leave or for a Reduced Work Schedule.
APWU Form 5. Desire or Need Absences for Birth or Placement of Son or Daughter.
|WorkCite: Employment & Benefits Legal Update|
Final Revised FMLA Regulations Issued: Highlights of the Good, the Bad and the Ugly
Just in time for the holiday gift giving season, on November 17, 2008, the U.S. Department of Labor (DOL) published its final revised regulations, overhauling the implementation of the Family and Medical Leave Act of 1993 (FMLA). Certain provisions in the new regulations are clear nods to court and employer concerns regarding inconsistencies, vagueness and other practical problems with the old regulations. The DOL also designed the new regulations to:
- Expand avenues for communication between employees, employers and healthcare providers;
- Provide clarity to workers and employers about their mutual responsibilities and rights under the FMLA; and
- Address the two new FMLA leave entitlements created by the military family leave provisions in the National Defense Authorization Act (NDAA).
Weighing in at a hefty 762 pages in length, the new regulations plus preamble will require careful study by employers who will need to make a number of updates to their current policies and practices in 2009. Highlights of some of the key changes are set forth below.
The new regulations take effect on January 16, 2009, which is sixty (60) days from the date they were published. This will require employers to move quickly in order to revise policies, train managers and otherwise implement the new requirements. On the bright side, in light of the current financial climate, the new regulations could easily have been titled the "2008 Full Employment for Human Resources Administrators and Antacid Manufacturers Economic Stimulus Act."
- Eligible Employees. As before, an eligible employee is an employee of a covered employer who: (1) has been employed by the employer for at least twelve months, (2) has been employed for at least 1,250 hours of service during the twelve-month period immediately preceding the start of leave, and (3) is employed at a work site that has fifty or more employees within a seventy-five mile radius. Under the new regulations, if an employee has a break in service that lasts seven years or less, the employee's service prior to the break must be counted when determining if the employee has been employed for at least twelve months. Moreover, employment periods preceding a break in service of more than seven years must also be counted when the break is caused by the fulfillment of National Guard or Reserve military service obligations or "a written agreement, including a collective bargaining agreement, exists concerning the employer's intention to re-hire the employee after the break."
- Serious Health Condition. Although the six individual definitions of a "serious health condition" remain with no significant revisions, additional guidance is provided as to three. With respect to conditions involving more than three consecutive, full calendar days of incapacity plus two or more treatment visits to a healthcare provider, the new regulations provide that the two visits must occur in-person within 30 days of the first day of incapacity (unless extenuating circumstances exist), and the first in-person visit must take place within 7 days of incapacity. With respect to serious health conditions involving three consecutive, full calendar days of incapacity plus a regimen of continuing treatment, the new regulations likewise require that the first visit to the healthcare provider take place in-person within 7 days of the first day of incapacity. In addition, serious health conditions involving "chronic conditions" must require at least two visits for treatment by a healthcare provider per year.
- Minimum Leave Increment. Unfortunately, the new regulations do not provide any significant relief to employers struggling to address practical intermittent or reduced schedule FMLA leave problems. However, the new regulations make a slight change to the language involving the counting of intermittent or reduced schedule leave, such that an employer must account for leave "using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave," provided it is not greater than one hour. By deleting the modifier "shortest period of time that the employer's payroll system uses," this allows employers to calculate intermittent and reduced schedule leave on the same basis as that calculated for other employee absences (i.e., regardless of lesser potential increments that a payroll system might be able to count).
- Minimal Leave Increment Exception. Where it is "physically impossible" for an employee on intermittent or reduced schedule leave to start or end work mid-way through a shift, the entire shift may be designated and counted as FMLA leave. This exception, however, appears to be narrow, with the DOL citing examples "such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed clean room."
- Compliance With Employer Policy. Under the new regulations, an employer may require an employee to comply with the employer's "usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances" (e.g., leave requests directed to a particular individual).
- Concurrent Use of Paid Leave. Prior to amendment, the current FMLA regulations applied different rules to the concurrent use of paid vacation and personal leave versus sick leave. However, according to the DOL, under the new regulations, "all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic paid time off)."
- Light Duty Work. One of the more significant changes in the new regulations involves the treatment of employees placed on light duty work. As before, if a healthcare provider treating an employee for a workers' compensation injury certifies that the employee is able to return to light duty work but is unable to return to the same or an equivalent position that the employee left, the employee may decline the employer's light duty offer and continue on FMLA leave until his or her leave entitlement is exhausted. However, consistent with the DOL's prior Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995), under the new regulations, if an employee accepts such light duty work, the time spent performing such duties does not count against an employee's FMLA leave entitlement. Further, according to the DOL, an employee's right to job restoration to his or her original position is "effectively held in abeyance" during the period of time that the employee works in the light duty role. However, the right to job restoration in such circumstances "ceases at the end of the applicable twelve-month FMLA leave year" used by the employer to calculate leave. In short, according to the DOL, "if an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave" but may have FMLA job restoration protection (in some cases well beyond the normal twelve-week period from the employee's original FMLA leave date).
- Overtime. In response to employer concerns, if an employee would normally be required to work overtime but is unable to do so because of FMLA-qualifying reasons, "the hours which the employee would have been required to work may be counted against the employee's FMLA entitlement" (i.e., counted as intermittent or reduced schedule leave, as applicable). However, an employee's inability to perform voluntary overtime hours may not be counted against an employee's FMLA leave entitlement.
Employer Notice Obligations
According to the DOL, the new regulations consolidate all FMLA employer notice requirements "into a one-stop section of the regulations." These notice requirements are divided into four categories.
- General Notice. As before, covered employers are required to post a notice explaining the FMLA's provisions and providing information concerning procedures for filing complaints. However, the new regulations state that electronic posting is sufficient, provided employees and applicants can access such materials. In addition, the new regulations clarify that general notice must be supplied to employees in employee handbooks or other written guidance if such materials exist or "by distributing a copy of the general notice to each new employee upon hiring."
- Eligibility Notice. Under the new regulations, when an employee requests FMLA leave or the employer acquires knowledge that an employee's absence may be for an FMLA-qualifying reason, "the employer must notify the employee of the employee's eligibility to take FMLA leave within five (5) business days, absent extenuating circumstances." If the employee is ineligible, "the notice must state at least one reason why." Once such eligibility is confirmed, "all FMLA absences for the same qualifying reason are considered a single leave," and the employee's eligibility for that reason continues and "does not change during the applicable twelve-month period."
- Rights and Responsibilities Notice. In addition to the eligibility notice discussed above, employers must also provide written notice to an employee "each time the eligibility notice is provided" regarding specific FMLA expectations and obligations and the consequences for failure to meet the same. This notice may be accompanied by the applicable FMLA medical certification form, if required by an employer for FMLA leave authorization.
- Designation Notice. Lastly, if requested FMLA leave is approved, employers are further required to provide notice to employees "designating leave as FMLA-qualifying." Such notice must be provided within five (5) business days after an employer "has enough information to determine whether leave is being taken for a FMLA-qualifying reason," absent extenuating circumstances. Thus, unlike the current regulations that require "provisional" FMLA leave designations in some circumstances, employers may now delay final leave designation until a required medical certification form has been returned.
Employee Notice Obligations
- Foreseeable Leave. As before, employees must provide employers with at least thirty (30) days advance notice before FMLA is to begin if the need for leave is foreseeable. For cases where such notice is not practicable (e.g., because of lack of knowledge of approximately when leave will begin), notice must be given "as soon as practicable." According to the DOL, it should be "practicable" to provide notice "either the same day or the next business day" of when the employee becomes aware of the need for foreseeable leave less than thirty (30) days in advance.
- Unforeseeable Leave. When the need for leave is unforeseeable, as before, employees must provide notice to the employer "as soon as practicable." However, the new regulations clarify that "it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave" (e.g., calling in to a specified number or contact individual).
- Notice Content. Under the new regulations, for foreseeable leave, employees must provide sufficient information for an employer to be "aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." For unforeseeable leave, employees must provide "sufficient information for an employer to reasonably determine whether the FMLA will apply to the leave request." As before, when seeking leave for the first time for a FMLA-qualifying reason, employees need not expressly assert or reference their rights under the FMLA. However, the regulations clarify that employees seeking leave due to a qualifying reason for which the employer has granted FMLA leave to the employee in the past "must specifically reference either the qualifying reason for leave or the need for FMLA leave." (Emphasis added). The new regulations further provide that "calling in 'sick' without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act."
- Timing. Under the new regulations, employers now have 5 (versus 2) days after the employee gives notice of the need for leave (or the date that leave begins in the event of unforeseeable leave) to request that an employee furnish medical certification.
- Separate Employee and Family Member Forms. Employers will recall that the current medical certification form recommended by the DOL is confusing, given that it is designed for leave involving both an employee's own serious health condition and that of an employee's family member. With the new regulations, the DOL includes two separate medical certification forms under - one for an employee's own serious health condition, and one for that of a family member.
- Incomplete / Vague Certification. If an employer receives an incomplete or "vague, ambiguous or non-responsive" medical certification, the employer must provide the employee seven (7) calendar days to cure any deficiency (unless "not practicable under the particular circumstances despite the employee's diligent good faith efforts"). If the deficiencies specified by the employer are not cured within the time frame required, FMLA leave may be denied. Moreover, according to the DOL in a government-speak acknowledgment of the obvious, a certification that is not returned is not considered incomplete or insufficient, but "constitutes a failure to provide certification."
- Healthcare Provider Follow-Up. A significant change in the new regulations provides that employer representatives may contact a healthcare provider directly for purposes of clarification and authentication of medical certification forms after giving an employee the opportunity to cure any deficiencies. Such contact must be made using a healthcare provider, a human resources professional, a leave administrator or some other management official of the employer. However, the regulations further provide that "under no circumstances" may an employee's "direct supervisor" contact the healthcare provider.
- Extended / Chronic Conditions. Where a serious health condition (for an employee's own condition or that of a family member) lasts beyond a single leave year, employers may now require employees to provide a new medical certification each subsequent leave year.
- ADA / Workers' Compensation Data. In a helpful clarification designed to address concern for HIPAA privacy rules, the new regulations state that employers may consider information provided by employees and their healthcare providers in connection with Americans With Disabilities Act (ADA) disability or reasonable accommodation requests and/or workers' compensation claims. Such information may be used to evaluate medical certifications provided and determine an employee's entitlement to FMLA-qualifying leave.
Fitness for Duty Certification
- Essential Job Functions. In a change from current regulations, the new regulations allow employers to "require that the [fitness for duty] certifications specifically address the employee's ability to perform the essential functions of the employee's job."
- Job Safety Exception. Unfortunately, the current prohibition remains against employers requesting fitness to return to duty certificates for employees on intermittent or reduced leave schedules. However, under the new regulations, employers may request a fitness to return to duty certificate for such absences up to once every 30 days "if 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."
Retaliation / Enforcement
- Achievement and Incentive Awards. As before, the new regulations provide that with some limited exceptions, employees have a right to reinstatement to the same or an equivalent position that the employee held when leave began upon return from authorized FMLA leave. This includes the right to the same or equivalent pay, benefits and working conditions. However, the new regulations provide that if an employer award or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance which the employee has not met due to FMLA leave, "then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave."
- Liability Waivers. In a significant departure from a prior 4th Circuit court ruling, the new regulations provide that employees may voluntarily settle or release any actual or potential FMLA claims against an employer without the requirement of court or DOL approval. However, prospective waivers of FMLA rights continue to be prohibited.
Military Family Leave
- Military Caregiver Leave. Under the new regulations, eligible employees who are family members of covered service members are able to take up to 26 workweeks of leave in a "single twelve-month period" to care for a covered service member who: (1) is on the temporary disability retired list; (2) has a serious injury or illness "incurred in the line of duty on active duty" for which he or she is undergoing medical treatment, recuperation or therapy; or (3) is otherwise on outpatient status. For purposes of calculating leave entitlement, the regulation provides that the single twelve-month period "begins on the first day the eligible employee takes FMLA leave to care for a covered service member," regardless of the method used by the employer to determine the employee's twelve workweeks of leave entitlement for other FMLA-qualifying reasons."
- Qualifying Exigency Leave. The new regulations also address the second type of new military family leave entitlement. Specifically, the regulations provide the normal twelve workweeks of FMLA job-protected leave to eligible employees with a covered military member serving in the National Guard or Reserves to use for any "qualifying exigency" arising out of the fact that such member is on active duty or called to active duty status. The regulations define "qualifying exigencies" to include the following eight items (with various caveats): (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) "additional activities" not addressed in the other categories, provided that both the employer and the employee agree to the timing and duration of such leave.
Employer Action Steps
As with any "clarification" of legal rules, the new FMLA regulations present both challenges and opportunities for employers. Thus, regardless of the pros and cons of the outcome, given the tight timeframe for implementation, employers should:
- Quickly begin to evaluate their current FMLA practices and revise their current policies, notices and forms to comply with the new FMLA requirements.
- Plan and schedule training for human resource professionals, front-line managers and other personnel involved in day-to-day implementation of the Act so that managers are prepared to address the new requirements when the final revised regulations go "live" in January 2009.
For assistance in updating your current FMLA policies and materials or training employees on the requirements of the new FMLA regulations, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits teams.
Stop the stripping of FMLA rights
By Chris Salinas
In 1993, the Family and Medical Leave Act (FMLA) was signed into law. The law was design to help workers get the time off in the event that they became ill, pregnant or needed to take care of a family member. When this law is used for these factors, workers didn't have to worry about losing their jobs or their health insurance. This law has been helpful to millions of workers across the US.
Today, it is under attack by the Bush Administration as they are trying to weaken (and quite possibly destroy) its current purpose of helping workers. The Department of Labor (or is that Anti-Labor) under the direction of Bush appointee Elaine Chao has suggested the following changes as I'll list below.
Allow anyone in management to inquire with your doctor. Currently, the only one that would know your condition is an individual assigned by the employer to approve/disapprove your FMLA. Also that this individual will only need to know is your condition that qualifies under FMLA. If this change happens, anyone in management could inquire directly with your doctor and learn about anything about your condition. Who to say that your past conditions won't be revealed as well? Basically would allow management to violate your privacy.Requires you to seek a "second opinion", at your expense, if management disagrees with the information. If you have a serious condition and your doctor says that you could have this condition for a year, the employer would have to pay if they disagree with that condition. Under the proposal, you would have to pay even if the second doctor says the same thing as the first doctor.
- Charging the employee for OT hours used by the employer. Under FMLA, you have 12 weeks (480 hours) of FMLA leave available for your use. If this change is allowed, the hours the employer uses is deducted from the employee on FMLA leave their allotted time. So if an employer uses an employee to cover your absence and they work 6 hours OT, they subtract those 6 hours from your FMLA allotment.
We, as postal workers, should be alarmed as we all know what management tries to get away with when it comes to FMLA already. These changes would give them the right to do it. There are other changes mentioned and I recommend you see these changes at our union website. I created a simpler link that you can use to learn more about these FMLA changes. This link is:
But you only have till April 11th to make comments on these changes. I suggest you write your comments directly to each of the changes rather than just saying something like "Don't change the FMLA law!". But any comment is better than no comment.
We need to write these comments so that a record shows that many are against these changes, or they'll just happen. I also make a small suggestion, that you don't identify yourself as a union person or government worker. The reason I suggest this is because they would take the average person's word over someone who belongs to a group they know opposes these changes. Let's play their game is what I suggest.
You can use your word processor and submit an attachment in Word Document, Word Perfect or Text Editor format. When you're ready to submit your comments, submit them at another link I made that will bring you to the proper comment area. The link is:
Together we can stop this insanity and save this law from being destroyed! Workers around this country and your family need your help to protect their rights! Make comments as your union can't do it alone!
Shortly after agreeing to expand leave for military families, the Bush administration proposed new regulations that would weaken employees’ medical privacy protections and make it more difficult for workers to use leave under the Family and Medical Leave Act (FMLA). DOL Issues Proposed Revisions to FMLA Regulations
10 Quick notes:
1. Keep a copy of all paperwork you send it.
2. Don't turn in FMLA paper work until you have a qualifying leave event - unsolicited
3. Contact your union rep and get some samples of pre filled out FMLA forms, so your doctor can fill your form out right the first time.
4. Do not give diagnosis or prognosis.
5. "Lifetime" is not an acceptable time from for your illness/injury to last. It make be accurate, but you and your doctor can not swear there will not be a cure in your lifetime. Put durdation up to your next scheduled doctor apointment for this qualifing event.
6. If management gives you a "pending documentation" you have 15 days to provide that. You may ask for more time, and they can grant it - they are not obligated to grant it. Get your info to them before the 15th day. If this is an expense to you - gas, time, doctor bill, file a grievance.
7. Duration and Frequency: You doctor will be as accurate as they can, no doctor can specificaly state when and how often your illness/event will occur. If you have a sudden increase or decrease in duration and frequency, the postal service may ask for an update on your FMLA qualifing event, and you will have to provide it.
8. You are not obligated to use the WH380. You can use the APWU forms or anything you want as long as it has the required information on it.
9. You have 2 (two) days following return to duty to make management aware you wanted that leave as FMLA.
10. Contact your Union!
Frequently Asked Questions (FAQs)
- Can an employee get FMLA protection for leave to care for a pregnant daughter who is 18 or older?
- Generally, no. The Act defines a “son or daughter” as one who is under the age of 18. The only exception for an individual who is 18 and over arises when that individual is “disabled” as defined by the Rehabilitation Act (or ADA) and the individual is incapable of self-care in at least three activities of daily living (i.e. grooming, bathing, eating, etc.) due to that disability. Pregnancy is not, in and of itself, a disability as defined by these statutes.
Note: The employee (or union representative) is likely to argue - “but pregnancy is a qualifying condition!”
You must separate qualifying condition from qualifying individual (i.e., parent, spouse, son or daughter, self) when determining whether to grant FMLA. According to the union’s argument, employees would be able to take leave for a pregnant neighbor, friend or other non-qualifying individual. This is not consistent with the law, so the FMLA protection for the employee to care for the 18+ pregnant daughter should still be denied.
- What do we do if an employee cannot get her health care provider (HCP) to specify frequency and duration for a chronic condition because the provider states it is too difficult to predict?
- It is the employee’s responsibility to submit the required medical information from her health care provider, which includes providing guidance to the employer regarding the expected frequency and duration of future absences. You can help your employee obtain the information necessary to complete the certification by doing the following: First, send the employee back to her HCP with a letter explaining why the Postal Service is seeking frequency and duration, and what factors go into that determination. (Your FMLA coordinator or field legal counsel will have a sample version of this letter.) Explain that we are not seeking an exact schedule of absences, just an educated prediction. If the condition changes and the frequency or duration exceeds the original prediction, a recertification from the HCP should be sought to address the additional frequency or duration. In addition, you might also explain to the employee that having a specified frequency and duration protects her, (i.e., if she takes leave within a specified frequency and duration, she is less likely to be questioned about it each time). If the employee refuses to go back to her HCP, ask the employee for permission to have our medical department contact the employee's HCP to discuss the expected frequency and duration. This is a good option when the employee claims that the HCP will charge them for a return visit. If the employee refuses to cooperate and provide the information after these two steps, deny the FMLA protection from the date of your initial request for the information until complete information is provided. This same procedure applies to recertification requests.
- What can we do about employees who abuse intermittent leave certified for chronic conditions, (e.g. have a pattern of absences in conjunction with a non-scheduled day or absences that consistently exceed the frequency and duration)?
- If you determine that a suspicious pattern exists that is not in conformity with the FMLA certification, you may discuss the pattern with the employee, just as you would with non-FMLA-protected absences. However, you cannot threaten the employee with discipline. State only that you have observed the pattern and ask for an explanation. If the explanation is not forthcoming or is unsatisfactory, require the employee to recertify the next time they request FMLA protection. If the recertification does not support the pattern, deny protection for the leave that exceeds the frequency and duration stated in the certifications. Your guiding factor should be reasonableness. On a cautionary note, you should consult with Labor Relations and/or the Law Department before disciplining an employee for absences that you believe are inconsistent with appropriate FMLA usage. Also, even though the leave may be FMLA protected, the usual ELM procedures for paid leave still apply. This means that if the employee is using paid sick leave for FMLA, you may request supporting documentation whenever the leave exceeds three consecutive days, or where you determine it necessary to protect the interests of the Postal Service. Similarly, if your facility normally requires sick leave documentation for annual leave in lieu of sick leave, you should require the documentation as well. If the documentation is unsatisfactory, you can deny the sick pay or annual leave pay as a corrective action. However, under no circumstances should you characterize an FMLA-protected leave as AWOL. If the employee is using LWOP for their FMLA leave, no sick leave documentation beyond the FMLA certification may be required.
- What information should I ask for from an employee claiming FMLA for an individual who is in loco parentis?
- The regulations provide some guidance in this area. The regulations state that persons who are “in loco parentis” include “those with day-to-day responsibilities to care for and financially support a child, or in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.” The regulations also provide that employers can ask for “reasonable documentation or statement of family relationship.” This can be a simple statement from the employee, a court document, school record, tax record, hospital record or cancelled checks. You should ask for approximate dates that the individual served “in loco parentis” as well. Please remember that while we are entitled to ask for and examine official documentation, such as a court document, the original must be returned to the employee.
- When can I ask for a second opinion?
- A second opinion is permitted when you have reason to doubt the validity of the information in the certification. This means that where the certification is otherwise complete and where nothing else will be gained by clarification (or the employee will not consent to our clarification efforts), a second opinion is appropriate in order to assess the accuracy of the original certification. Generally, second opinions are very useful for those chronic conditions which entail frequent unscheduled absences. Second opinions to determine whether a SHC exists are also helpful where the leave requested exempts the employee from overtime only. You can only require a second opinion for the original certification. The DOL regulations do not allow second opinions once a recertification has occurred.
- Should I accept certification signed by a Registered Nurse, instead of a physician?
- Generally, no. The only nurses who can sign FMLA certifications under the regulations are nurse practitioners and nurse midwives who are authorized under state law to provide diagnosis and treatment. If you are unsure whether the individual you are considering qualifies, consult with your District’s Medical Officer.
- Can an employee do outside work while on FMLA?
- Under the FMLA regulations, employees can work while on FMLA provided that the work does not conflict with their medical restrictions. However, ELM Section 513.312 [in ELM 510] prohibits an employee from engaging in gainful employment while on paid sick leave unless the employee receives prior approval from the appropriate authority. Thus, if the employee takes his FMLA leave as LWOP or AL he may engage in outside work that does not conflict with his medical restrictions.
- Can we count FMLA against an employee for attendance contest purposes?
- Awards for perfect attendance or for “no unscheduled absences” cannot take FMLA absences into account. However, if practicable, the award can be pro rated to account for the time the employee was out on FMLA leave. In addition, "no sick leave" contests are also permissible because employees who take unpaid FMLA would still be eligible for the award; only employees who elect to use paid sick leave FMLA would not. It is therefore critical that at the beginning of the contest we provide written notice to employees of their rights in this regard so that FMLA users may opt to remain eligible by charging their absence to either AL or LWOP. As to performance-based contests, an employee’s FMLA absences may be taken into account in terms of assessing contribution. For example, if the employee fails to qualify for an award because (s)he was absent, the award may be denied or prorated to account for the lost productivity. The FMLA-protected employee, however, must be treated the same as non-FMLA-protected employee, so you should ensure that non-protected individuals who missed the same amount of time are equally docked.
- What if an employee wants to save her FMLA for later in the year and won’t turn in a certification form?
- If the employee refuses or fails to submit a requested certification, you may nonetheless have enough information to determine that the leave should be FMLA-protected via medical documentation which the employee has already submitted (such as in the case of paid sick leave) or from your personal knowledge that the employee is in the hospital. In that case, you should grant FMLA and dock the employee’s bank even if they don’t want you to. It is always management’s responsibility and duty to designate qualifying leave as FMLA-protected and dock the employee’s FMLA bank accordingly. However, if you do not have independent knowledge of a qualifying condition and the employee refuses to provide certification, document that fact and deny FMLA protection. The employee is then subject to discipline for the absences. Some districts have already reported success with DOL denying FMLA protection where management documents that the employee refused to comply with a certification request. If you are considering disciplining any employee for such absences, please consult with Labor Relations and/or the Law Department because if you have independent knowledge that the leave qualifies for FMLA, the DOL may find that we should have protected the leave.
- What do we do about granting FMLA-protected paid sick leave to employees just before retirement?
- Generally, a pre-retiree should be treated just like any other employee requesting FMLA-protected and/or paid sick leave. FMLA certification should be required and a determination of the appropriateness of a second opinion should be done. Proper documentation supporting the paid sick leave pursuant to ELM regulations should be required. If the employee exhausts her 12-week bank but remains out on paid sick leave prior to retirement, an inquiry should be made as to the extent and duration of the incapacity from work. If the employee is unable to perform the essential functions of any available position within the Postal Service for which the employee is qualified and the duration of the incapacity is permanent or undeterminable, the employee may be severed in accordance with strict past practice in the District regarding other employees who cannot be reasonably accommodated.
- Where should I store FMLA certifications?
- Where RM is not operational, certifications that contain medical diagnoses or other confidential medical information must be kept in the medical unit as confidential medical records. However, since supervisors also need to know about employee work restrictions and predicted frequency and duration of intermittent leaves in order to make correct leave approval decisions, the supervisor may keep redacted copies of certifications in a locked file system in the local office. These records should be kept for a period of three years. Where RM is operational, all FMLA information should be kept in the FMLA coordinator’s office in a locked file cabinet.
- What should I do if an employee gives me a FMLA certification I did not request?
- The answer depends upon whether the certification is for foreseeable or unforeseeable leave. If the certification is for a foreseeable absence - for example, if an employee has an operation scheduled or if the employee will need two hours off every Friday off for regularly scheduled chemotherapy appointments - you should accept the certification. The certification essentially gives notice in advance of the leave of the anticipated timing and duration as required by the regulation. If the certification is for unforeseeable absences, however, it should be accepted only if it is in connection with a current absence. Otherwise a certification that attempts to satisfy the notice requirements by indicating that one might have to be absent at some unforeseen time is not satisfactory. Therefore, if an employee brings you a certification that says he has asthma that may flare up from time to time 2-3 times a week, do not accept the certification unless the employee is providing it during a current absence or upon his return from an absence for that condition. In addition to inadequate notice, another reason we do not accept certifications in such cases is to ensure that we get the most current medical information regarding the incapacity from work. Your employee may never be incapacitated from work due to his asthma or the incapacity may not happen until a year from now. Requiring employees to wait until they are actually incapacitated from work due to their individual condition ensures that we get the most current medical assessment of their condition at that time. In addition, since we can only conduct a second opinion in conjunction with original certification, rejecting unsolicited certification until an actual incapacity occurs preserves our right to conduct a timely second opinion, if necessary. Accepting unsolicited recertifications, however, is at your discretion. Once you accept a recertification, you cannot require a second opinion on that condition. On the other hand, if several months have passed since the original certification and the condition appears to have changed, you might want to accept the unsolicited recertification, as you would probably be asking for one anyway. If you decide not to accept an unsolicited certification or recertification for FMLA purposes, you can still accept it for paid leave purposes. In that case, you should send the employee a letter explaining that you are accepting the documentation for sick leave purposes only and not for FMLA purposes.
- Should I automatically request recertification of on-going FMLA conditions at designated intervals, such as each new leave year or every 60 days?
- The regulations prohibit automatic recertification policies, so you should consider each FMLA case on its own individual merits. With some FMLA conditions, such as cancer that goes in and out of remission, it may be helpful for you to get updated medical information regarding the status of the condition each year. Thus, you should require recertifications when necessary to monitor any changes in the condition. However, if your employee has a long-term condition that has rarely changed in its frequency and duration, obtaining recertification is probably an unnecessary burden for you and your employee. Always ask yourself why you are requiring this recertification. If the answer is merely because it is a new leave year, you probably should avoid requiring the recertification. Also, please review the frequency limitations on recertifications provided in your supervisor training guide to ensure that a sufficient period of time has elapsed since the last recertification form. In many cases, at least 30 days must have passed since the original certification or last recertification.
- How do I characterize leave while the certification is pending?
- Once you have sent out Publication 71 and a Form WH-380 requesting certification, the leave should be marked “Approved FMLA, pending documentation noted on reverse” on Form 3971 and sent to the employee as notice. Due to the amount of supervisory fluctuation, 204(b)s, vacations, etc., conditionally designating the leave as FMLA prevents some other supervisor from mistakenly counting the leave against your employee for disciplinary purposes when a valid certification might actually be on its way. Once the certification comes in, you remove the conditional language and mark the leave “approved” or “disapproved” depending upon the outcome of the certification. Then you must also notify the employee of the final designation via the 3971.
This page last updated 12/5/06.
FMLA: COMPLETE CERTIFICATION:
WHEN AND HOW TO GET SECOND OPINIONS
1. WHAT IS A COMPLETE CERTIFICATION
The Postal Service can require employees to support their requests for leave under the
FMLA with a health care provider's certification of their serious health condition. The
Department of Labor (DOL) has developed an optional form (WH-380) which satisfies FMLA certification requirements. The employee may use Form WH-380, or any other documentation, so long as it contains the same basic information as the WH-380.
Certification is complete when the employee not only supplies all the information requested, but the information provided is responsive, i.e., it contains enough detail and specificity to enable the supervisor to determine if FMLA leave is warranted. When certification is complete and establishes that the employee is entitled to FMLA, the supervisor must designate the absence as FMLA unless the conditions in sections 3, 4, or 5 below exist.
- WHAT TO DO WHEN CERTIFICATION IS NOT COMPLETE
If the information submitted is not complete, it is imperative for the supervisor to (1) advise the employee where the certification is deficient and (2) ask the employee to obtain the necessary information. The employee must be given sufficient time to comply with this request, i.e., at least 15 days from the time of the request.
3. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT
YOU QUESTION ITS AUTHENTICITY
When you have reason to doubt the authenticity of a certification, for example, when the document appears to have been altered, you should request that the medical unit or contract postal physician contact the employee's health care provider to verify the authenticity of the certification. You can do this by returning a copy of the suspect certification to the employee's health care provider so he/she can see it firsthand in order to verify or deny its authenticity. This inquiry is limited solely to verifying the authenticity of the medical documentation and cannot be used to obtain additional medical information. Note, however, that the regulations provide only for a second opinion as a means of verifying authenticity in the absence of employee consent to
contact his or her provider.
4. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT
IT IS UNCLEAR WHETHER THE EMPLOYEE'S ABSENCE IS
ENTITLED TO FMLA PROTECTION
If you do not understand whether the certification establishes an FMLA protected absence, there are two options available. First, you can seek to clarify the certification.
Request the employee's permission to have the medical unit or contract physician contact the employee's health care provider to request clarification of the information contained in the document.
If clarification by the employee's health care provider does not resolve your concern(s) or if the employee denies you permission to contact his or her provider, you should obtain a second opinion.
5. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT
YOU HAVE REASON TO DOUBT THE VALIDITY OF THE
A second opinion is also appropriate, without the intervening step of clarification, when you have reason to dispute the validity of the information contained in the certification. This can occur initially, when you first receive the certification, or at some subsequent time when circumstances cause you to doubt the validity of the initial certification.
Unless it is clear from the certification that all information was submitted and that the condition meets the requirements of a SHC, we advise supervisors to seriously consider obtaining second opinions in cases of chronic serious health conditions. This is because once you approve a request for intermittent leave for a chronic condition, the employee can take as much as 9 1/2 hours a week of protected absences in a leave year without running his or her FMLA entitlement. To ensure complete information therefore, a second opinion is a sound investment.
6. GETTING A SECOND OPINION
The second opinion is at the Postal Service's expense and it includes reasonable out-of-pocket travel expenses incurred to obtain the second opinion.* The time spent by the employee getting a second opinion is unpaid unless, of course, the employee is on sick or annual leave. Employees may use available paid leave if the appointment must be during their tour of duty. If an employee refuses to cooperate with the second opinion process, the employee loses the benefit of FMLA protected leave.
Employees are also entitled to copies of the second opinion when they request it. The copies should be provided to them within two business days of the request, absent extenuating circumstances. Employees are entitled to the protection of the FMLA pending receipt of the second opinion.
* Out-of-pocket expenses can also include other miscellaneous items such as copying costs for the medical documents.
A. Who Gives the Second Opinion
Contact the Postal Service medical unit or contract physician to get a list of health care providers in your geographic area who specialize in the medical condition in question. Wherever possible, use board-certified specialists. Health care providers employed by or regularly contracted with the Postal Service cannot be used for second opinions. Exceptions may be permissible in rural areas where access to specialists is extremely limited. Consult Labor Relations or the Law Department for additional advice in this regard. The employee or family member may not be required to travel outside normal commuting distance, except in very unusual circumstances.
B. What Forms Must Be Completed
Complete PS Form 7381, Requisition for Supplies, Services, or Equipment. Obtain appropriate approvals prior to sending the employee for the second opinion. Note in the justification section of the Form "The Family and Medical Leave Act allows the Postal Service to require a second opinion from a health care provider when it doubts the validity of the medical certification entitling the employee to a maximum of 12 workweeks of job-protected FMLA absence."
C. What to Tell the Health Care Provider
A letter should be prepared for the Postal Service to send in advance to the second opinion provider. This letter should be from either the Postal Service's medical officer/contract physician or from Human Resources. It should advise the selected health care provider to bill the Postal Service for the cost of the second opinion, emphasizing that only an opinion of the serious health condition is requested. It would be helpful to attach a copy of DOL's Form WH-380 and request that it be completed. Advise the health care provider to submit the medical bill and results of his or her findings to your office. Provide the appropriate address or preferably, a self-addressed envelope.
The letter should also inform the health care provider of the essential functions of the employee's position, work schedule, attendance and work environment. If you have specific questions, regarding the serious health condition (for example, expected frequency and duration of intermittent absences) note so in this letter. Attach copies of the prior medical certification as well.
D. How to do Billing
Payment for the examination should follow your local buying authority procedures, i.e., impress funds, etc. (See ASM, subchapter 71). When you receive the bill, attach it to the approved PS Form 7381, and submit to the Finance Office or installation head, as appropriate, for payment. The employee should fill out PS Form 1164, Claim for Reimbursement for Expenditures on Official Business, to claim reimbursement for reasonable "out-of-pocket" travel expenses incurred to obtain the second opinion.
7. WHEN THE SECOND OPINION VALIDATES THE FIRST OPINION
If the second opinion establishes the validity of the first opinion, the employee is entitled to the FMLA protected absences as verified by the second opinion health care provider. The supervisor may then request subsequent recertifications of the employee's medical conditions as specified in 29 C.F.R. 825.308 (DOL regulations).
8. WHEN THE SECOND OPINION DIFFERS FROM THE FIRST OPINION
If the second opinion does not establish the employee's entitlement to FMLA, the leave shall not be designated as FMLA and may be treated as paid or unpaid leave under the Postal Service's established leave policies. The employee must be notified of the results of the second opinion and of the fact that the leave will not be designated as FMLA.
If the employee nonetheless believes FMLA leave is appropriate, or if the second opinion confirms the condition is FMLA protected but differs in the amount of leave predicted, the employee may wish to obtain a third opinion. Again, this is at Postal Service expense. Unlike second opinions, though, a health care provider employed by or regularly contracted with the Postal Service may be used for the third opinion. However, the third opinion health care provider must be jointly approved or designated by both the employer and employee. Normally, you should give the employee a list of three or four qualified specialists and ask the employee to choose one. Make the appointment and provide the health care provider with a letter similar to the second opinion letter. The employee is entitled to the protection of the FMLA pending the third opinion.
The third opinion is final and binding. Absence of good faith in this process by either party warrants resort to either the first or second opinion, depending on which party fails to cooperate. Billing and other information for the health care provider follow the same procedures as for the second opinion.
If the certifications do not ultimately establish the employee's entitlement to FMLA, time keeping records are to be corrected to reflect that the absence was not protected by FMLA. The absence may be treated as paid or unpaid leave and is subject to any related disciplinary actions under the Postal Service's established policy.
Employees must sign an authorization form allowing their health care provider to release and disclose medical information to the Postal Service. Contact your field law office for assistance.
For both second opinions and clarifications, employees will need to sign an authorization allowing their health care provider to disclose information directly to the Postal Service. Contact your field law office for assistance.
Sick Leave for Dependent Care
Effective October 27, 2005, Employee and Labor Relations Manual (ELM) 513.1, Purpose, and 513.32, Conditions for Authorization, are revised to differentiate sick leave taken for employee incapacitation from sick leave taken for dependent care, and then to clarify that leave taken for care of a qualifying family member, after a maximum of 80 hours of sick leave, will be charged to annual leave, or to leave without pay, at the employee's option.
513 Sick Leave
[Revise 513.1 to read as follows:]
513.11 Sick Leave for Employee Incapacitation
Sick leave insures employees against loss of pay if they are incapacitated for the performance of duties because of illness, injury, pregnancy and confinement, and medical (including dental or optical) examination or treatment.
513.12 Sick Leave for Dependent Care
A limited amount of sick leave may also be used to provide for the medical needs of a family member. Nonbargaining unit employees, and bargaining unit employees if provided in their national agreements, are allowed to take up to 80 hours of their accrued sick leave per leave year to give care or otherwise attend to a family member (as defined in 515.2) with an illness, injury, or other condition that, if an employee had such a condition, would justify the use of sick leave. If leave for dependent care is approved, but the employee has already used the maximum 80 hours of sick leave allowable, the difference is charged to annual leave or to LWOP at the employee's option. (See 515 for information about FMLA entitlement to be absent from work.)
* * * * *
513.3 Authorizing Sick Leave
* * * * *
513.32 Conditions for Authorization
[Revise the fourth entry of the table in 513.32 to change the reference from 513.1 to 513.12 as follows:]
|* * * * * |
|For eligible employees (as indicated in 513.12), care for a family member (as defined in 515.2).||Up to 80 hours of accrued sick leave per leave year if the illness, injury, or other condition is one that, if an employee had such a condition, would justify the use of sick leave.|
|* * * * * |
* * * * *
We will incorporate these revisions into the next printed version of the ELM and also into the online update, available on the Postal ServiceTM PolicyNet Web site:
• Go to http://blue.usps.gov.
• Under "Essential Links" in the left-hand column, click on References.
• Under "References" in the right-hand column, under "Policies," click on PolicyNet.
• Click on Manuals.
(The direct URL for the Postal Service PolicyNet Web site is http://blue.usps.gov/cpim.)
It is also available on the Postal Service Internet:
• Go to www.usps.com.
• Click on About USPS & News, then Forms & Publications, then Postal Periodicals and Publications, and then Manuals.
Employee Resource Management, 10-27-05