Focus on Revised FMLA Regulations: Revised Notice and Certification Forms

I have received a number of requests for a link to the Department of Labor's new Notice and Certification Forms.

Under the "Additional Information on the Final Regulations" section of the site, you will find the following forms developed by the Department of Labor: 

  • WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition
  • WH-381 Notice of Eligibility and Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave

Generally, using the Department of Labor's forms creates a "safe harbor" for employers.  Assuming that the employer completes the forms correctly and otherwise complies with the applicable notice requirements set forth in the Regulations, the employer will not be liable for an FMLA violation premised upon a failure to provide adequate notice and/or request an appropriate certification. 

That said, I recommend that employers have their legal counsel review, in particular, their Notices of Eligibility and Rights and Responsibilities and Designation Notices to ensure that they are completing them in a manner consistent with the Revised FMLA Regulations and their company's practices and policies.  Each form has a number of options which the employer must select in order to complete the form.  For example, the employer will need to notify the employee requesting leave of any accrued paid time off that will be substituted for unpaid FMLA leave time, and how benefit payments will need to be made.  Moreover, if, for example, the employer fails to notify the employee of the need to provide a fitness-for-duty certification, or that the employee is considered a "key employee", the employer will not be able to elect those options at a later date. 

I will be explaining each of the forms in more detail over the next few weeks.  Please check back for additional guidance regarding the various pitfalls to avoid when completing the new forms. 

Focus on Revised FMLA Regulations: Can An Employer Request A Second Or Third Opinion Before the Opportunity To Cure?

Happy New Year!  We are closing in on the January 16, 2009 effective date of the Final Regulations, so I hope to cover a number of topics in the next few weeks. 
 
A client recently asked whether an employer must give an employee the opportunity to cure any deficiences in a medical certification pursuant to 29 C.F.R. Section 825.305(c) before the employer may seek a second or third opinion concerning the certification.  The Final Regulations do not address this issue.  According to the Final Regulations, an employee is required to provide a "complete and sufficient" certification to the employer if the employer's request otherwise complies with the applicable Final Regulations.  The employer shall advise an employee whenever the empoyer finds the certification incomplete or insufficient, and shall state in writing what additional information is needed to make the certification complete or sufficient.  A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or non-responsive.  The employer must provide the employee with seven calendar days (unless "not practicable under the particular circumstances despite the employee's good faith efforts") to cure any such deficiency.  See 29 C.F.R. Section 825.305(c). 
 
An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense.  Pending receipt of the second medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits.  See 29 C.F.R. Section 825.307(b).  If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a health care provider at the employer's expense.  The third opinion is final and binding.  See 29 C.F.R. Section 825.307(c).  Employers should refer to 29 C.F.R. Sections 825.307(b) and (c) concerning which health care providers may furnish a second or third opinion and, in the case of third opinions, the process for selecting the health care provider. 
 
Sections 825.305 and 825.307 of the Final Regulations are silent as to whether an employer must provide the employee with the 7-day opportunity to cure an insufficient or imcomplete certification before seeking a second opinion because the employer has reason to doubt the validity of the medical certification.  In many, if not most, cases, if an employer has reason to doubt the validity of the medical certification, the concern likely will arise from the fact that the initial medical certification is either incomplete or insufficient.  Given this, and given that an employer must provide the employee with an opportunity to cure if the certification is incomplete or insufficient, the best practice is to provide the opportunity to cure and then seek a second opinion if the employer still has concerns about the validity of the medical certification.  In addition, because the employer must pay for the second and third opinions, it would behoove the employer to attempt to resolve any issues with the certification through the 7-day opportunity to cure prior to expending monies on additional certifications. 
 
I suspect that we will see a Department of Labor opinion letter on this issue at some point. 
 
Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations.