New FMLA Forms

The federal department of labor has updated a number of its forms, including the Family Medical Leave Act forms.  If you look at the expiration date in the upper right hand corner of the form, it should say “Expires: 5/31/2018.”  Click on the links below to get the forms:

Notice to give to employee at beginning letting them know if they are even eligible for FMLA leave and what the conditions will be:

Certification of Health Care Provider for Employee:

Certification of Health Care Provider for Family Member:

Form for designating FMLA leave and letting employee know FMLA is approved:

The forms are worth reviewing because they are also sources of guidance to employers.  For example:

While you are not required to use this form, you may not ask the employee to provide more information than allowed under the FMLA regulations, 29 C.F.R. §§ 825.306-825.308. Employers must generally maintain records and documents relating to medical certifications, recertifications, or medical histories of employees created for FMLA purposes as confidential medical records in separate files/records from the usual personnel files and in accordance with 29 C.F.R. § 1630.14(c)(1), if the Americans with Disabilities Act applies, and in accordance with 29 C.F.R. § 1635.9, if the Genetic Information Nondiscrimination Act applies.

Do not forget about GINA.  You want those warnings to providers to protect your company.  Also, there are some folks out there asking for second opinions on return to works from FMLA leave.  Here is what the FMLA regulations say about that:

No second or third opinion allowed on RTW.

(b) An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. The certification from the employee’s health care provider must certify that the employee is able to resume work. Additionally, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. In order to require such a certification, an employer must provide an employee with a list of the essential functions of the employee’s job no later than with the designation notice required by § 825.300(d), and must indicate in the designation notice that the certification must address the employee’s ability to perform those essential functions. If the employer satisfies these requirements, the employee’s health care provider must certify that the employee can perform the identified essential functions of his or her job. Following the procedures set forth in § 825.307(a), the employer may contact the employee’s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee’s return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Rebecca Webber is an employment attorney; others at the firm handle business and other matters.  You can contact us at 784-3200 (telephone).  Skelton, Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.