Archive for the ‘Family and Medical Leave Act’ Tag

Revised Expiration Date of the FMLA Certification Forms

As of December 31 2011, the Family and Medical Leave Act (FMLA) Certification forms expired, leaving many employers wondering what forms to use in attempts to remain in compliance and when a new form will be released. The Department of Labor (DOL) announced that the outdated forms could still be used although these forms lack mention of important regulations, including 2010 Amendments for Military Family Leave and the Genetic Information Nondiscrimination Act of 2008 (GINA).

At the beginning of 2012, the DOL released the forms with a temporary expiration date on a monthly basis. The delay in the revision date was due to a review of the forms by the Office of Management and Budget (OMB). Under the Paperwork Reduction Act of 1995, the DOL is required to submit FMLA forms to OMB for approval. The form was initially approved in late 2008 and carried a three (3) year expiration date, the maximum time frame allowed.

 Recently, the forms were released with an expiration date of February 28 2015, but the new forms do not include any substantive changes (view updated forms below). The DOL did not use this opportunity to update the shortcomings of the expired forms.

The U.S. Equal Employment Opportunity Commission (EEOC) recommends employers include language pertaining to GINA in a customized version of the form. GINA requires employers who request medical certifications from employees to safeguard against the collection of any genetic information about the individual.

 The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Are You Violating ADA Requirements by Denying Leaves?

According to the American with Disabilities Act (amended to American with Disabilities Act Amendments Act (ADAAA)), employees who request an extension for leave due to medical reasons cannot be terminated regardless of the length of leave. The Equal Employment Opportunity Commission (EEOC) prohibits leave policies that terminate employees who exhaust leave benefits because it is a violation the ADAAA reasonable accommodation clause.

 The Family and Medical Leave Act (FMLA) provides eligible employees twelve workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. In cases where an employee with an exasperated leave benefit files an extension, the ADAA requires employers to evaluate the request to determine if additional leave would impose an undue hardship on the business. The employer must analyze the impact of the employee’s initial 12-week absence to determine how much additional leave is needed. Furthermore, employers are not required to grant indefinite leave if they receive notice from the employee or the employee’s physician stating that the employee will never be able to return to work.

As per EEOC regulations, if an employer cannot hold the employee’s job open due to undue hardship, the employer must then determine whether there is an equivalent vacant position that the employee is qualified to perform. If the employee could be re-assigned to an equivalent position without incurring an undue hardship then the employer should extend the leave and assign the employee to the open position.  If an equivalent position is not available, the employer must look for a vacant position at a lower level. If an employee is able to return to work but unable to perform an essential function of the original position, even with a reasonable accommodation, the employer may consider re-assignment and possibly separation.

 HR Best Practices:
• Train managers on FMLA policies so that work-hours can be analyzed appropriately if an employee raises an ADA related concern.
• Post proper notices and consider employee requests for additional leave or special consideration for a reasonable accommodation.
• Promptly respond to employee requests regarding leave extensions, special accommodations, or any requests related to FMLA or ADA.