Employers in Wyoming need to be aware of changes to the federal FMLA law.
Under the Family and Medical Leave Act (FMLA) rules, Wyoming employees have the right to as much as 12 weeks of job protected, unpaid leave yearly to attend to their own or an immediate family member’s “serious health condition.”
Employers have the right, in turn, to require that the condition be certified by an employee’s healthcare provider.
Proposed new changes to the FMLA regulations by the U.S. Department of Labor would change some of the rules governing medical certification.
For example, the new rules would permit an employer to request recertification of an “ongoing condition” once in a 6-month period or even more often, provided the request is in conjunction with an absence on FMLA leave. Although it is referred to as a “request” for recertification, employers have the right to deny FMLA time to a worker who refuses to comply.
New changes would also streamline the process of recertification. Employers may contact healthcare providers to clarify details of a medical certification form, but both the employer and provider must abide by HIPAA laws regarding medical privacy.
Employers may not request information not already included on the form. Healthcare providers need not supply a diagnosis when filling out a medical certification. While the U.S. Labor Department’s WH-380 form for certification is being updated, it remains optional. The WH-380 form includes a place where the provider may list a diagnosis if she or he wishes to do so.
Employers under the new rules may require medical recertification annually in the case of an ongoing serious health problem. If a worker’s migraine headaches require periodic days off, unscheduled, under FMLA, it is allowable for the employer to require annual recertification.
The new regulations also clarify an existing ambiguity. Currently, employers may require recertification if a healthcare provider lists a time limit on the original certification.
A provider may specify that employee Mary requires 6 weeks of FMLA leave to attend to her carpal tunnel syndrome. But this led to problems for both courts and employers because healthcare practitioners will sometimes list a condition as “lifetime” or its duration as “unknown.” Under the old rules, that permanently blocked employers from requiring recertification. The new regulations permit employers to require periodic recertification.
More Wyoming FMLA Changes
Employers would have greater control over certain aspects of the “fitness-for-duty” certification process under some changes to the Family and Medical Leave Act (FMLA) proposed by the U.S. Labor Department.
One change would permit employers to require that a certification specifically address a worker’s ability to carry out key tasks of his or her job. A warehouse worker, for example, who lifts heavy boxes, could be required to provide certification that he or she will again be able to do so when returning from an FMLA leave that was taken to attend to a serious health condition.
Another change is designed to limit or eliminate FMLA leave abuse by workers. It addresses the employee who takes intermittent FMLA leave. If there is a safety concern, the employer is allowed to require the worker to provide certification each time he or she takes some FMLA leave and wishes to return.
“Carl” is a truck driver who suffers intermittent migraine headaches, for example. The headaches interfere with his vision. Because driving with impaired vision is a safety concern, Carl’s employer could require him to submit a “fitness-for-duty” certificate each time he takes FMLA leave and seeks to return to his job.
If there is no reasonable safety concern, however, the employer does not have the right to require a certificate.
The current regulations allow employers to require a worker taking FMLA leave to submit the certification from a healthcare provider showing that he or she is physically capable of resuming the job.
The employer must apply the certification requirement uniformly to workers who are in similar conditions. An employer may require all workers who take FMLA leave for a serious health condition to submit a certification when returning. On the other hand, the employer need not require such certification if the employee is returning from an FMLA leave that was taken to care for a newly adopted child.
The Labor Department recently announced the proposed changes. Employers and others wishing to comment have until April 11, 2008. After that, the changes are published in the National Register and become law.
