Editorial By Postal Worker Dan Sullivan

The U.S. Department of Labor (DOL) is proposing revised regulations governing the Family and Medical Leave Act which would give employers formidable new weapons to use against the very workers the law was designed to protect.

The new rules, if adopted, will require employees and doctors to provide more information to obtain FMLA leave and increase costs for employees while broadening the rights of employers to gather personal medical information and deny employees coverage under the law.

The Department of Labor conservatively estimates the proposed changes will save employers at least $45 million a year and cost employees and health insurers $11.3 million yearly, mainly in costs to obtain medical information from health care providers.

One of numerous proposed changes harmful to workers involves substitution of paid leave for unpaid FMLA leave.

Under current rules an employer has the right to demand medical certification of an employee’s serious health condition when an employee asks for FMLA leave, unless the employee requests FMLA paid sick or vacation leave and the employer has a sick leave policy with less stringent certification requirements than provided by the law. In those cases an employer must follow its own less stringent certification requirements.

An example of how this protection works for employees can be found in the Postal Service.

Since the Postal Service’s union-negotiated sick leave plan doesn’t normally require medical documentation for sick leave absences of 3 days or less, it’s illegal for postal bosses to follow the FMLA’s more stringent certification requirements and require medical documentation from workers requesting paid FMLA leave for 3 days or less.

In fact, postal bureaucrats routinely demand medical certification from workers requesting paid FMLA leave for absences of 3 days or less in violation of the law. But those violations can be challenged and corrected in the grievance procedure or in court.

But not anymore if the Department of Labor has its way.

As the DOL dryly notes in one of its proposed rule changes, “The current regulation explains that if less stringent medical certification standards apply to the sick leave plan, those standards must be followed when paid leave is substituted. The Department proposes to delete this section.”

So while the law prohibits discrimination against FMLA leave users, the proposed regulation would allow postal bosses to require FMLA leave users to provide medical documentation for paid sick leave absences of 3 days or less while allowing non-FMLA users to take up to 3 days of sick leave without having to provide medical documentation for the absence.

And there’s more.

Under current regulations if an employee submits a complete medical certification an employer is prohibited from requiring more medical information from the employee’s health care provider. A complete medical certification is one where the health care provider answers all of the questions on the certification form.

But under pressure from employers and anti-FMLA organizations such as the Orwellian-named National Coalition To Protect Family Leave and the South Central Human Resource Management Association, the DOL is proposing that employers be allowed to require more medical information if they deem a certification “insufficient,” which the DOL proposes to define as “vague, ambiguous or non-responsive.”

Of course that would allow anti-FMLA employers to reject virtually every medical certification as being “vague, ambiguous or non-responsive” and deny workers FMLA leave or require them to make multiple visits to a health care provider to obtain certifications “sufficient” to convince anti-FMLA bosses that they have a serious medical condition and need time off work.

The new regulations offer plenty of other weapons to anti-FMLA employers in their war against employees who need time off work for serious health conditions.

If adopted, the proposed rules would require that health care providers certify that intermittent or reduced schedule leave is medically necessary and explain why.

Employers will also be free, if an employee has a serious medical condition that may qualify as a disability under the Americans with Disability Act, to demand far more medical information than is allowed under the FMLA.

And while the proposed rules acknowledge current medical privacy laws, if an employee refuses to give his or her health care provider consent to speak with an employer for the purpose of clarifying medical certifications “an employee may jeopardize his or her FMLA rights.”

And bosses would no longer have to get permission from employees before contacting their health care providers to confirm the authenticity of a medical certification.
The proposed rules would also eliminate the current requirement that any contact between an employer and an employee’s health care provider must be made through the employer’s health care provider. The new proposal would allow any employer representative to contact health care providers for purposes of authenticating and clarifying medical certifications.

That means that no longer would medical disputes over certifications be settled by discussions between two professionals – physicians representing the employee and employer. Instead, health care providers would have to discuss disputes over medical certifications with employer representatives who have no medical education or knowledge or the employer would have the right to deny FMLA leave.

In the Postal Service that means FMLA coordinators trained in circumventing the law would have free rein to not only harass and argue with workers seeking FMLA leave but also with their health care providers.

In addition to allowing employers to contact health care providers about medical certifications, the proposed rules would grant employers the right to send an employee’s absence record to the health care provider and to ask if the pattern of intermittent absences is “congruent with the employee’s qualifying medical condition.”

Employers would also be allowed to request medical recertification more often than under the current regulations which prohibit employers from requesting recertification until the period of incapacity or treatment specified by a health care provider has passed, or once a year, whichever period of time is less.

Instead, employers would be allowed to require recertification every 6 months regardless of how long the period of incapacity or treatment may be.

The DOL also proposes to tilt the playing field in favor of employers when it comes to fitness-for-duty requirements following FMLA leave.

Under current regulations if an employer has a uniformly applied policy or practice requiring employees to provide fitness-for-duty certifications upon return from leave, it may also apply that policy to employees returning from FMLA leave. The fitness-for-duty certification need only be a simple statement that the employee is able to return to work.

But the proposed rules go beyond the simple return to work statement and would allow employers to present the employee’s health care provider with a listing of the employee’s essential functions, which would then require the health care provider to certify that the employee can safely perform those duties.

The regulations proposed by the DOL would also broaden employers’ rights regarding fitness-for-duty certification when employees use intermittent FMLA leave.

Under current rules an employer cannot require such a return-to-work certification when an employee returns from intermittent FMLA leave. But the proposed new regulations would permit an employer “to require a fitness-for-duty certificate every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist.”

If the new rules are adopted, one can be certain that anti-FMLA employers will suddenly become unusually concerned with the safety of employees using intermittent FMLA leave.

The DOL is also proposing a revision to its standard medical certification form (WH-380), which health care providers use to certify an employee’s serious health condition. The proposed new certification form would require more detailed answers from the health care provider and would give employers more reasons to judge a certification incomplete or insufficient.

The DOL did toss one bone in the direction of workers. The proposed rules would for the first time generally recognize Physician Assistants for medical certification purposes.

But that’s not much to chew on for workers in comparison to the full course banquet the DOL has laid out for anti-FMLA employers.

While the DOL’s proposed rule changes stop short of gutting the Family and Medical Leave Act, they would add plenty of firepower to the arsenal of weapons employers already have at their disposal to harass and interfere with workers’ rights under an increasingly weakened law.

Employees, unions, pro-family and pro-worker organizations may still be able to stop the anti-FMLA proposals of the Department of Labor if they can mount a campaign to alert the public and Congress to the dangers of the proposed regulations.

But time is short. The Department of Labor is giving the public until April 11, 2008 to comment on the changes before final rules are published.

Comments must refer to Regulatory Information Number (RIN) 1215-AB35 and may be submitted electronically or through the mail. Comments may be made electronically through the Federal eRulemaking Portal: http://www.regulations.gov or through the mail to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue N.W., Washington, DC 20210.

A copy of the February 11, 2008 Federal Register containing the proposed FMLA rule changes and the form for submitting comments electronically can be found at:

http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&o=09000064803abfe7