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New FMLA Rules Tweak Medical Certification Procedures

    Client Alerts
  • December 19, 2008

When training human resource staff with regard to the Department of Labor’s new Family and Medical Leave Act regulations, employers should pay particular attention to changes in the law’s medical certification procedures.  These procedures allow employers to confirm that the basis for a FMLA leave request falls within the Act’s protected conditions.


First, DOL has issued two new medical certification forms (WH-380E and F) that replace the old form as of January 16, 2009.  The separate forms are used depending upon whether the leave request is based on the employee’s own Serious Health Condition, or that of a qualifying family member (a third form, WH-385 is used to certify that a family member wounded or ill as a result of military service meets these requirements).


The employee still has 15 calendar days to return the completed medical certification form.  However, the new regulations provide that if an incomplete form is returned, the employee will have seven days to complete it.  Failure to meet these deadlines absent extenuating circumstances is grounds for the employer to delay approval of the leave request.


Under current FMLA rules, the employer is prohibited from contacting the healthcare provider who fills out the certification form without the employee’s consent.  The new regulations change this prohibition, allowing the employer to directly call the provider without the employee’s permission to either authenticate the form, or to seek clarification such as unreadable handwriting.


The employee’s direct supervisor cannot be the person making the inquiry, and the questions cannot stray beyond these authentication and clarification grounds.  The healthcare provider still may choose not to speak with the employer without the employee’s authorization under HIPAA, but failure by the employee to provide such authorization can be grounds for delaying the leave.


The second and third medical opinion procedures in the rules remain unchanged.  As stated above, employers should have these new medical certification procedures in place by January 16.