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Ask Our Expert: Effects of the FMLA Regulation Changes

Matt MorrisWe've asked Matt Morris, a Senior Counsel at Aon Hewitt specializing in employment law, to answer several questions about the recent changes to the Family Medical Leave Act (FMLA). If you'd like to ask a question about this topic, or about any other pressing human resources challenge you are facing, e-mail us. We'll share responses to select questions on a regular basis.

Question: What's this new Department of Labor opinion letter that just came out? Does the FMLA now apply to same-sex partners?

Answer: Yes and no. Although some reports have suggested otherwise, the June 22, 2010 Administrator's Interpretation (AI) by the U.S. Department of Labor (DOL) did not extend the FMLA to an employee's ability to care for a same-sex partner with a serious health condition. However, the DOL reviewed the FMLA in loco parentis standard, clarifying that an employee could take a leave for a child with a serious health condition, even if there was no biological or legal relationship — including the child of a same-sex partner — so long as the employee could show that he/she "stood in the place of the parent of that child."

Question: Does granting a "reasonable accommodation" under the Americans with Disabilities Act (ADA) ever become a factor during an intermittent FMLA leave?

Answer: Yes, you could have both the ADA and the FMLA applying to the same intermittent leave. In fact, a federal appellate court recently held that even though such an entire leave was an ADA "accommodation," the FMLA ran concurrently and thus the employer could still deduct time from the employee's FMLA balance. Perhaps the more important question, however, is whether an employee can take leave under the ADA when he/she is not FMLA eligible. The answer to that question is yes, and employers must be sure to consider whether an employee who is ineligible for or has exhausted his/her FMLA time might have an ADA-qualifying disability that would qualify him or her for additional leave as a "reasonable accommodation" under that law.

Question: Can an employer require a doctor's note stating each absence was specifically for this condition? If so, who pays the copay?

Answer: Under the FMLA regulations, an employer cannot ask for a note regarding each absence because each absence is considered part of one FMLA period as opposed to separate leaves. The certification for the intermittent leave covers all intermittent absences that comprise that leave. That said, employers are allowed to request that employees recertify their leaves in certain situations (e.g., circumstances may have changed significantly or something casts doubt upon the reason for leave). With regard to the copay for the doctors' visits, the guidance clearly puts the responsibility on employees for any charges by their health care providers. Still, we are hearing more and more that doctors are charging their patients to complete the health care provider forms, and that employees are relaying their distress to employers.

Question: Does an intermittent FMLA leave expire after 12 months or is it ongoing?

Answer: Yes, the certification expires. In the 2009 regulations, the Department of Labor clarified that employers can require an "annual medical certification" for conditions that last longer than one year (generally, certifications of "lifetime" or "indefinite" conditions). The regulations also clarify that an employer may require a recertification every six months. What's the difference? The only difference is that the annual certification is considered a new certification, not a recertification. Therefore, the annual certification is subject to clarifications or authentications and second and third opinions.

Question: What about recertifications? Can an employer still recertify when it suspects the employee is being dishonest?

Answer: Yes. In fact, if the reason for the suspicion is because the employee's absences evince a pattern, the employer can provide the health care provider with a record of the employee's absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

Question: Does the DOL require an employer to use the WH-380 E and F Certification of Healthcare Provider forms to certify a serious health condition? My company has its own medical forms that are used for disability management purposes and to justify paying sick time. We run FMLA concurrently with sick time so we use our form for pay and periodic updates. Can we just use our company form or do we need to use the DOL form?

Answer: You do not have to use the templated WH-380 forms provided by the DOL. In fact, many of our leave outsourcing clients use a simplified version of the form that we created. Section 306 of the regulations clarifies that the DOL's form is "optional" and that an employer only need follow the rules outlined in that section. But, the section also mentions that "no additional information may be required" besides the elements enumerated in this regulation.

That leads to the second part of this question regarding the use of the form to cover disability management as well. While some information listed in Section 306 could be pertinent to an analysis of short-term disability qualifications, employers must be careful to exclude any additional information gathered for purposes related to the disability pay request.

Question: Our heads are still spinning after the 2009 FMLA regulation changes. I heard that the Department of Labor is planning to revise the regulations again? Is that true?

Answer: The bad news first: yes, it's true. The good news is that the new regulations will first need to undergo a Notice and Comment period which is not scheduled to begin until November, 2010. Thus, new regulations will not likely arrive soon. Even better news is that according to a May 21, 2010 statement by the chief of the DOL's Regulatory Analysis Branch, the proposed regulations will focus narrowly on the recent changes to the law: the October 2009 family military amendments and the Airline Flight Crew Technical Corrections Act. Thus, unless your employee population has a significant military population and/or you work in the airline industry, you can expect the changes to have a fairly narrow impact on the administration of the FMLA.

About Our Expert
Matt Morris is a Senior Counsel at Aon Hewitt specializing in employment law. He also serves as the legal and compliance leader for Hewit'st Absence Management Solutions, providing strategy and administration of the FMLA and related state leave laws. Matt has spoken and written about challenges with FMLA compliance, and participated in a roundtable discussion about the FMLA. He also authored Hewitt's response to the DOL's proposed FMLA regulations which was cited repeatedly by the DOL in the final rule.