Department of Labor FMLA Section 825 Revised 2009

DOL Fact Sheet Final Rule

DOL Page on FMLA

Final Rule 2008 Changes

 FMLA Basics

FMLA Employee Service Talk 2009

FMLA Guide University of Iowa Labor Center 2009

FMLA Rules and Laws

How to Apply you FMLA Rights (APWU Book)

Human Resources letter FMLA 2009

Leave and Documentation

Top 10 FMLA Violations

WH 1420 FMLA 2009 Poster

FMLA

10 Quick notes:

1. Keep a copy of all paperwork you send it. 

2. Don't turn in FMLA paper work until you have a qualifying leave event - unsolicited

3. Contact your union rep and get some samples of pre filled out FMLA forms, so your doctor can fill your form out right the first time.

4. Do not give diagnosis or prognosis.

5. "Lifetime" is not an acceptable time from for your illness/injury to last. It make be accurate, but you  and your doctor can not swear there will not be a cure in your lifetime. Put durdation up to your next scheduled doctor apointment for this qualifing event.

6. If management gives you a "pending documentation" you have 15 days to provide that. You may ask for more time, and they can grant it - they are not obligated to grant it. Get your info to them before the 15th day. If this is an expense to you - gas, time, doctor bill, file a grievance.  

7. Duration and Frequency: You doctor will be as accurate as they can, no doctor can specificaly state when and how often your illness/event will occur. If you have a sudden increase or decrease in duration and frequency, the postal service may ask for an update on your FMLA qualifing event, and you will have to provide it.

8. You are not obligated to use the WH380. You can use the APWU forms or anything you want as long as it has the required information on it.

9. You have 2 (two) days following return to duty to make management aware you wanted that leave as FMLA.

10. Contact your Union!

Frequently Asked Questions (FAQs)

• Can an employee get FMLA protection for leave to care for a pregnant daughter who is 18 or older?
• Generally, no. The Act defines a “son or daughter” as one who is under the age of 18. The only exception for an individual who is 18 and over arises when that individual is “disabled” as defined by the Rehabilitation Act (or ADA) and the individual is incapable of self-care in at least three activities of daily living (i.e. grooming, bathing, eating, etc.) due to that disability. Pregnancy is not, in and of itself, a disability as defined by these statutes.

  Note: The employee (or union representative) is likely to argue - “but pregnancy is a qualifying condition!”

  You must separate qualifying condition from qualifying individual (i.e., parent, spouse, son or daughter, self) when determining whether to grant FMLA. According to the union’s argument, employees would be able to take leave for a pregnant neighbor, friend or other non-qualifying individual. This is not consistent with the law, so the FMLA protection for the employee to care for the 18+ pregnant daughter should still be denied.

• What do we do if an employee cannot get her health care provider (HCP) to specify frequency and duration for a chronic condition because the provider states it is too difficult to predict?
• It is the employee’s responsibility to submit the required medical information from her health care provider, which includes providing guidance to the employer regarding the expected frequency and duration of future absences. You can help your employee obtain the information necessary to complete the certification by doing the following: First, send the employee back to her HCP with a letter explaining why the Postal Service is seeking frequency and duration, and what factors go into that determination. (Your FMLA coordinator or field legal counsel will have a sample version of this letter.) Explain that we are not seeking an exact schedule of absences, just an educated prediction. If the condition changes and the frequency or duration exceeds the original prediction, a recertification from the HCP should be sought to address the additional frequency or duration. In addition, you might also explain to the employee that having a specified frequency and duration protects her, (i.e., if she takes leave within a specified frequency and duration, she is less likely to be questioned about it each time). If the employee refuses to go back to her HCP, ask the employee for permission to have our medical department contact the employee's HCP to discuss the expected frequency and duration. This is a good option when the employee claims that the HCP will charge them for a return visit. If the employee refuses to cooperate and provide the information after these two steps, deny the FMLA protection from the date of your initial request for the information until complete information is provided. This same procedure applies to recertification requests.
• What can we do about employees who abuse intermittent leave certified for chronic conditions, (e.g. have a pattern of absences in conjunction with a non-scheduled day or absences that consistently exceed the frequency and duration)?
• If you determine that a suspicious pattern exists that is not in conformity with the FMLA certification, you may discuss the pattern with the employee, just as you would with non-FMLA-protected absences. However, you cannot threaten the employee with discipline. State only that you have observed the pattern and ask for an explanation. If the explanation is not forthcoming or is unsatisfactory, require the employee to recertify the next time they request FMLA protection. If the recertification does not support the pattern, deny protection for the leave that exceeds the frequency and duration stated in the certifications. Your guiding factor should be reasonableness. On a cautionary note, you should consult with Labor Relations and/or the Law Department before disciplining an employee for absences that you believe are inconsistent with appropriate FMLA usage. Also, even though the leave may be FMLA protected, the usual ELM procedures for paid leave still apply. This means that if the employee is using paid sick leave for FMLA, you may request supporting documentation whenever the leave exceeds three consecutive days, or where you determine it necessary to protect the interests of the Postal Service. Similarly, if your facility normally requires sick leave documentation for annual leave in lieu of sick leave, you should require the documentation as well. If the documentation is unsatisfactory, you can deny the sick pay or annual leave pay as a corrective action. However, under no circumstances should you characterize an FMLA-protected leave as AWOL. If the employee is using LWOP for their FMLA leave, no sick leave documentation beyond the FMLA certification may be required.
• What information should I ask for from an employee claiming FMLA for an individual who is in loco parentis?
• The regulations provide some guidance in this area. The regulations state that persons who are “in loco parentis” include “those with day-to-day responsibilities to care for and financially support a child, or in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.” The regulations also provide that employers can ask for “reasonable documentation or statement of family relationship.” This can be a simple statement from the employee, a court document, school record, tax record, hospital record or cancelled checks. You should ask for approximate dates that the individual served “in loco parentis” as well. Please remember that while we are entitled to ask for and examine official documentation, such as a court document, the original must be returned to the employee.
• When can I ask for a second opinion?
• A second opinion is permitted when you have reason to doubt the validity of the information in the certification. This means that where the certification is otherwise complete and where nothing else will be gained by clarification (or the employee will not consent to our clarification efforts), a second opinion is appropriate in order to assess the accuracy of the original certification. Generally, second opinions are very useful for those chronic conditions which entail frequent unscheduled absences. Second opinions to determine whether a SHC exists are also helpful where the leave requested exempts the employee from overtime only. You can only require a second opinion for the original certification. The DOL regulations do not allow second opinions once a recertification has occurred.
• Should I accept certification signed by a Registered Nurse, instead of a physician?
• Generally, no. The only nurses who can sign FMLA certifications under the regulations are nurse practitioners and nurse midwives who are authorized under state law to provide diagnosis and treatment. If you are unsure whether the individual you are considering qualifies, consult with your District’s Medical Officer.
• Can an employee do outside work while on FMLA?
• Under the FMLA regulations, employees can work while on FMLA provided that the work does not conflict with their medical restrictions. However, ELM Section 513.312 [in ELM 510] prohibits an employee from engaging in gainful employment while on paid sick leave unless the employee receives prior approval from the appropriate authority. Thus, if the employee takes his FMLA leave as LWOP or AL he may engage in outside work that does not conflict with his medical restrictions.
• Can we count FMLA against an employee for attendance contest purposes?
• Awards for perfect attendance or for “no unscheduled absences” cannot take FMLA absences into account. However, if practicable, the award can be pro rated to account for the time the employee was out on FMLA leave. In addition, "no sick leave" contests are also permissible because employees who take unpaid FMLA would still be eligible for the award; only employees who elect to use paid sick leave FMLA would not. It is therefore critical that at the beginning of the contest we provide written notice to employees of their rights in this regard so that FMLA users may opt to remain eligible by charging their absence to either AL or LWOP. As to performance-based contests, an employee’s FMLA absences may be taken into account in terms of assessing contribution. For example, if the employee fails to qualify for an award because (s)he was absent, the award may be denied or prorated to account for the lost productivity. The FMLA-protected employee, however, must be treated the same as non-FMLA-protected employee, so you should ensure that non-protected individuals who missed the same amount of time are equally docked.
• What if an employee wants to save her FMLA for later in the year and won’t turn in a certification form?
• If the employee refuses or fails to submit a requested certification, you may nonetheless have enough information to determine that the leave should be FMLA-protected via medical documentation which the employee has already submitted (such as in the case of paid sick leave) or from your personal knowledge that the employee is in the hospital. In that case, you should grant FMLA and dock the employee’s bank even if they don’t want you to. It is always management’s responsibility and duty to designate qualifying leave as FMLA-protected and dock the employee’s FMLA bank accordingly. However, if you do not have independent knowledge of a qualifying condition and the employee refuses to provide certification, document that fact and deny FMLA protection. The employee is then subject to discipline for the absences. Some districts have already reported success with DOL denying FMLA protection where management documents that the employee refused to comply with a certification request. If you are considering disciplining any employee for such absences, please consult with Labor Relations and/or the Law Department because if you have independent knowledge that the leave qualifies for FMLA, the DOL may find that we should have protected the leave.
• What do we do about granting FMLA-protected paid sick leave to employees just before retirement?
• Generally, a pre-retiree should be treated just like any other employee requesting FMLA-protected and/or paid sick leave. FMLA certification should be required and a determination of the appropriateness of a second opinion should be done. Proper documentation supporting the paid sick leave pursuant to ELM regulations should be required. If the employee exhausts her 12-week bank but remains out on paid sick leave prior to retirement, an inquiry should be made as to the extent and duration of the incapacity from work. If the employee is unable to perform the essential functions of any available position within the Postal Service for which the employee is qualified and the duration of the incapacity is permanent or undeterminable, the employee may be severed in accordance with strict past practice in the District regarding other employees who cannot be reasonably accommodated.
• Where should I store FMLA certifications?
• Where RM is not operational, certifications that contain medical diagnoses or other confidential medical information must be kept in the medical unit as confidential medical records. However, since supervisors also need to know about employee work restrictions and predicted frequency and duration of intermittent leaves in order to make correct leave approval decisions, the supervisor may keep redacted copies of certifications in a locked file system in the local office. These records should be kept for a period of three years. Where RM is operational, all FMLA information should be kept in the FMLA coordinator’s office in a locked file cabinet.
• What should I do if an employee gives me a FMLA certification I did not request?
• The answer depends upon whether the certification is for foreseeable or unforeseeable leave. If the certification is for a foreseeable absence - for example, if an employee has an operation scheduled or if the employee will need two hours off every Friday off for regularly scheduled chemotherapy appointments - you should accept the certification. The certification essentially gives notice in advance of the leave of the anticipated timing and duration as required by the regulation. If the certification is for unforeseeable absences, however, it should be accepted only if it is in connection with a current absence. Otherwise a certification that attempts to satisfy the notice requirements by indicating that one might have to be absent at some unforeseen time is not satisfactory. Therefore, if an employee brings you a certification that says he has asthma that may flare up from time to time 2-3 times a week, do not accept the certification unless the employee is providing it during a current absence or upon his return from an absence for that condition. In addition to inadequate notice, another reason we do not accept certifications in such cases is to ensure that we get the most current medical information regarding the incapacity from work. Your employee may never be incapacitated from work due to his asthma or the incapacity may not happen until a year from now. Requiring employees to wait until they are actually incapacitated from work due to their individual condition ensures that we get the most current medical assessment of their condition at that time. In addition, since we can only conduct a second opinion in conjunction with original certification, rejecting unsolicited certification until an actual incapacity occurs preserves our right to conduct a timely second opinion, if necessary. Accepting unsolicited recertifications, however, is at your discretion. Once you accept a recertification, you cannot require a second opinion on that condition. On the other hand, if several months have passed since the original certification and the condition appears to have changed, you might want to accept the unsolicited recertification, as you would probably be asking for one anyway. If you decide not to accept an unsolicited certification or recertification for FMLA purposes, you can still accept it for paid leave purposes. In that case, you should send the employee a letter explaining that you are accepting the documentation for sick leave purposes only and not for FMLA purposes.
• Should I automatically request recertification of on-going FMLA conditions at designated intervals, such as each new leave year or every 60 days?
• The regulations prohibit automatic recertification policies, so you should consider each FMLA case on its own individual merits. With some FMLA conditions, such as cancer that goes in and out of remission, it may be helpful for you to get updated medical information regarding the status of the condition each year. Thus, you should require recertifications when necessary to monitor any changes in the condition. However, if your employee has a long-term condition that has rarely changed in its frequency and duration, obtaining recertification is probably an unnecessary burden for you and your employee. Always ask yourself why you are requiring this recertification. If the answer is merely because it is a new leave year, you probably should avoid requiring the recertification. Also, please review the frequency limitations on recertifications provided in your supervisor training guide to ensure that a sufficient period of time has elapsed since the last recertification form. In many cases, at least 30 days must have passed since the original certification or last recertification.
• How do I characterize leave while the certification is pending?
• Once you have sent out Publication 71 and a Form WH-380 requesting certification, the leave should be marked “Approved FMLA, pending documentation noted on reverse” on Form 3971 and sent to the employee as notice. Due to the amount of supervisory fluctuation, 204(b)s, vacations, etc., conditionally designating the leave as FMLA prevents some other supervisor from mistakenly counting the leave against your employee for disciplinary purposes when a valid certification might actually be on its way. Once the certification comes in, you remove the conditional language and mark the leave “approved” or “disapproved” depending upon the outcome of the certification. Then you must also notify the employee of the final designation via the 3971.

This page last updated 12/5/06.

FMLA: COMPLETE CERTIFICATION:

WHEN AND HOW TO GET SECOND OPINIONS

1. WHAT IS A COMPLETE CERTIFICATION

The Postal Service can require employees to support their requests for leave under the

FMLA with a health care provider's certification of their serious health condition. The

Department of Labor (DOL) has developed an optional form (WH-380) which satisfies FMLA certification requirements. The employee may use Form WH-380, or any other documentation, so long as it contains the same basic information as the WH-380.

Certification is complete when the employee not only supplies all the information requested, but the information provided is responsive, i.e., it contains enough detail and specificity to enable the supervisor to determine if FMLA leave is warranted. When certification is complete and establishes that the employee is entitled to FMLA, the supervisor must designate the absence as FMLA unless the conditions in sections 3, 4, or 5 below exist.

1. WHAT TO DO WHEN CERTIFICATION IS NOT COMPLETE

If the information submitted is not complete, it is imperative for the supervisor to (1) advise the employee where the certification is deficient and (2) ask the employee to obtain the necessary information. The employee must be given sufficient time to comply with this request, i.e., at least 15 days from the time of the request.

3. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT

YOU QUESTION ITS AUTHENTICITY

When you have reason to doubt the authenticity of a certification, for example, when the document appears to have been altered, you should request that the medical unit or contract postal physician contact the employee's health care provider to verify the authenticity of the certification. You can do this by returning a copy of the suspect certification to the employee's health care provider so he/she can see it firsthand in order to verify or deny its authenticity. This inquiry is limited solely to verifying the authenticity of the medical documentation and cannot be used to obtain additional medical information. Note, however, that the regulations provide only for a second opinion as a means of verifying authenticity in the absence of employee consent to

contact his or her provider.

4. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT

IT IS UNCLEAR WHETHER THE EMPLOYEE'S ABSENCE IS

ENTITLED TO FMLA PROTECTION

If you do not understand whether the certification establishes an FMLA protected absence, there are two options available. First, you can seek to clarify the certification.

Request the employee's permission to have the medical unit or contract physician contact the employee's health care provider to request clarification of the information contained in the document.

If clarification by the employee's health care provider does not resolve your concern(s) or if the employee denies you permission to contact his or her provider, you should obtain a second opinion.

5. WHAT TO DO WHEN CERTIFICATION IS COMPLETE BUT

YOU HAVE REASON TO DOUBT THE VALIDITY OF THE

INFORMATION

A second opinion is also appropriate, without the intervening step of clarification, when you have reason to dispute the validity of the information contained in the certification. This can occur initially, when you first receive the certification, or at some subsequent time when circumstances cause you to doubt the validity of the initial certification.

Unless it is clear from the certification that all information was submitted and that the condition meets the requirements of a SHC, we advise supervisors to seriously consider obtaining second opinions in cases of chronic serious health conditions. This is because once you approve a request for intermittent leave for a chronic condition, the employee can take as much as 9 1/2 hours a week of protected absences in a leave year without running his or her FMLA entitlement. To ensure complete information therefore, a second opinion is a sound investment.

6. GETTING A SECOND OPINION

The second opinion is at the Postal Service's expense and it includes reasonable out-of-pocket travel expenses incurred to obtain the second opinion.* The time spent by the employee getting a second opinion is unpaid unless, of course, the employee is on sick or annual leave. Employees may use available paid leave if the appointment must be during their tour of duty. If an employee refuses to cooperate with the second opinion process, the employee loses the benefit of FMLA protected leave.

Employees are also entitled to copies of the second opinion when they request it. The copies should be provided to them within two business days of the request, absent extenuating circumstances. Employees are entitled to the protection of the FMLA pending receipt of the second opinion.

* Out-of-pocket expenses can also include other miscellaneous items such as copying costs for the medical documents.

A. Who Gives the Second Opinion

Contact the Postal Service medical unit or contract physician to get a list of health care providers in your geographic area who specialize in the medical condition in question. Wherever possible, use board-certified specialists. Health care providers employed by or regularly contracted with the Postal Service cannot be used for second opinions. Exceptions may be permissible in rural areas where access to specialists is extremely limited. Consult Labor Relations or the Law Department for additional advice in this regard. The employee or family member may not be required to travel outside normal commuting distance, except in very unusual circumstances.

B. What Forms Must Be Completed

Complete PS Form 7381, Requisition for Supplies, Services, or Equipment. Obtain appropriate approvals prior to sending the employee for the second opinion. Note in the justification section of the Form "The Family and Medical Leave Act allows the Postal Service to require a second opinion from a health care provider when it doubts the validity of the medical certification entitling the employee to a maximum of 12 workweeks of job-protected FMLA absence."

C. What to Tell the Health Care Provider

A letter should be prepared for the Postal Service to send in advance to the second opinion provider. This letter should be from either the Postal Service's medical officer/contract physician or from Human Resources. It should advise the selected health care provider to bill the Postal Service for the cost of the second opinion, emphasizing that only an opinion of the serious health condition is requested. It would be helpful to attach a copy of DOL's Form WH-380 and request that it be completed. Advise the health care provider to submit the medical bill and results of his or her findings to your office. Provide the appropriate address or preferably, a self-addressed envelope.

The letter should also inform the health care provider of the essential functions of the employee's position, work schedule, attendance and work environment. If you have specific questions, regarding the serious health condition (for example, expected frequency and duration of intermittent absences) note so in this letter. Attach copies of the prior medical certification as well.

D. How to do Billing

Payment for the examination should follow your local buying authority procedures, i.e., impress funds, etc. (See ASM, subchapter 71). When you receive the bill, attach it to the approved PS Form 7381, and submit to the Finance Office or installation head, as appropriate, for payment. The employee should fill out PS Form 1164, Claim for Reimbursement for Expenditures on Official Business, to claim reimbursement for reasonable "out-of-pocket" travel expenses incurred to obtain the second opinion.

7. WHEN THE SECOND OPINION VALIDATES THE FIRST OPINION

If the second opinion establishes the validity of the first opinion, the employee is entitled to the FMLA protected absences as verified by the second opinion health care provider. The supervisor may then request subsequent recertifications of the employee's medical conditions as specified in 29 C.F.R. 825.308 (DOL regulations).

8. WHEN THE SECOND OPINION DIFFERS FROM THE FIRST OPINION

If the second opinion does not establish the employee's entitlement to FMLA, the leave shall not be designated as FMLA and may be treated as paid or unpaid leave under the Postal Service's established leave policies. The employee must be notified of the results of the second opinion and of the fact that the leave will not be designated as FMLA.

If the employee nonetheless believes FMLA leave is appropriate, or if the second opinion confirms the condition is FMLA protected but differs in the amount of leave predicted, the employee may wish to obtain a third opinion. Again, this is at Postal Service expense. Unlike second opinions, though, a health care provider employed by or regularly contracted with the Postal Service may be used for the third opinion. However, the third opinion health care provider must be jointly approved or designated by both the employer and employee. Normally, you should give the employee a list of three or four qualified specialists and ask the employee to choose one. Make the appointment and provide the health care provider with a letter similar to the second opinion letter. The employee is entitled to the protection of the FMLA pending the third opinion.

The third opinion is final and binding. Absence of good faith in this process by either party warrants resort to either the first or second opinion, depending on which party fails to cooperate. Billing and other information for the health care provider follow the same procedures as for the second opinion.

If the certifications do not ultimately establish the employee's entitlement to FMLA, time keeping records are to be corrected to reflect that the absence was not protected by FMLA. The absence may be treated as paid or unpaid leave and is subject to any related disciplinary actions under the Postal Service's established policy.

Employees must sign an authorization form allowing their health care provider to release and disclose medical information to the Postal Service. Contact your field law office for assistance.

For both second opinions and clarifications, employees will need to sign an authorization allowing their health care provider to disclose information directly to the Postal Service. Contact your field law office for assistance.

Employees

ELM REVISION

Sick Leave for Dependent Care