Answers To Frequently Asked Questions--Part Two

I am frequently asked the following question:

Q.  May an employer contact any employee's physician in connection with a request for FMLA leave?

A.  Before making any contact with an employee's physician, an employer should require that the employee seeking leave for her own serious health condition or that of a family member have her physician complete a certification of health care provider form that is consistent with the Department of Labor's sample form.  Under the revised regulations issued in 2008, a representative of an employer may contact an employee's health care provider directly about a medical certification, but only to seek "authentication" or "clarification" of information on the form.  The employer's representative must be a health care provider, human resources professional, a leave administrator, or a management official, but the representative may not be the employee's direct supervisor.  Further, employers may not ask health care providers for additional information beyond that required by the certification form. 

Answers To Some Frequently Asked Questions--Part One

I have received a number of questions, both by email and on the blog, so I wanted to take some time to address the most frequently asked questions.  I hope to make this a continuing series.

Q.  Can an employee qualify for FMLA leave in connection with an upcoming imprisonment?

A.   Unless the employee or a qualified family member suffers from a serious health condition, the employee is giving birth to or adopting a child or taking leave to care for a newborn child, or the employee qualifies for military-related FMLA leave (and has worked for a covered employer for at least 12 months and at least 1250 months in the previous 12 months), the employee would not be eligible for FMLA leave to prepare for an upcoming imprisonment. 

Q.  Must an employee requalify for FMLA in connection with an intra-company transfer to another department?

A.  No.  If the employee previously established her eligibility for FMLA leave, and has complied with any valid recertification requirements, as applicable, the employee need not reestablish eligibility for FMLA leave due to a transfer.

Q.  What is the current status of the proposed Family and Medical Leave Inclusion Act, H.R. 2132?

A.  The bill was referred to committee, which is the first step in the legislative process.  I will update the blog should there be any new updates concerning the bill.  In the meantime, FMLA leave is not available to employees who require leave to care for the serious health condition of a domestic partner or same-sex partner, although employers may offer such leave voluntarily.