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January 2009

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

New FMLA regulations take effect today!

While last month's newsletter provided an overview of the new Family and Medical Leave Act (FMLA) regulations, because of the significant changes presented by this law, we are featuring a more detailed summary regarding the changes taking effect today, in the context of a general FMLA primer addressing FMLA leave basics for employee's requesting or entitled to FMLA leave for a work-related injury. Additional or different provisions may apply for other types of FMLA leave, including pregnancy, leave for other family members, and the new FMLA military leave.

The U.S. Department of Labor has created a revised labor poster of employee rights and responsibilities under the FMLA. For further information, fact sheets and revised forms relating to the FMLA revisions, the Department has devoted a section of their website to the subject.

Starting today, employers need to begin using the new notice forms, certification forms, letters of eligibility and determination, all of which are detailed further in the following article.

Serious health condition: For purposes of the FMLA, a "serious health condition" means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider, as further defined by the regulations. The original definitions of "serious health condition" are retained, but the rule clarifies the definitions. It further explains the timing of the "two visits to a health care provider" as well as further clarifying timing of medical treatment for "periodic visits" and "continuing treatment." 

Medical certification: In order to qualify the employee for leave under the FMLA, the health care provider may be required to certify that the employee is unable to perform the essential functions of the employment position and the medical necessity for such leave. The final rule allows an employer to directly contact the employee's health care provider, for purposes of authentication or clarification, after the employer has provided an opportunity for the employee to cure any deficiencies in the certification. If the certification is incomplete, an employer may explain in writing what is lacking and give the employee seven days to cure the deficiency.

  • "Authentication" means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. 
  • "Clarification" means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response.

The employer's representative who contacts the health care provider must be a health care provider himself or herself, human resource professional, leave administrator or management official. The employer representative contacting the health care provider regarding the employee's medical condition or leave may not be the employee's direct supervisor.

The requirements of the Health Insurance Portability and Accountability Act ("HIPAA") apply to employer communications with employee health care providers for FMLA purposes, and an employee may prohibit his or her health care provider from communicating with the employer. If the clarification or authentication is not provided by the employee, and the employee declines to authorize direct communication by the employer with the health care provider for such purposes, the employer may deny the requested FMLA leave.

Employers may not ask for any information beyond that allowed on the medical certification form. Additional exchange of information is allowed under the new Form WH-380, Certification of Health Care Provider for Employee's Serious Health Condition. The certification form allows for detailed description of symptoms and diagnosis of the health condition although providing that information in any specific format or detail is not required.

Employers may request a new certification every leave year if the medical condition extends beyond one year. An employer generally may not request recertification more often than every 30 days, and in all cases the employer has the right to request recertification every six months if the condition is ongoing.

If an employee is on a workers' compensation absence, and the employer is allowed to request additional information from the employee's workers' compensation health care provider for purposes of the workers' compensation benefits, the employer may consider this additional information to determine the employee's entitlement to FMLA-protected leave. Any information received pursuant to other benefit plans or employment-related disability policies may be considered in determining the employee's entitlement to FMLA-protected leave. An employee's entitlement to FMLA leave is not affected by the employee’s failure to provide information required for receipt of non-FMLA benefits.

Notice: The employee is not required to expressly assert rights under the FMLA, or even mention the FMLA, but only state that leave is needed. The employer is left with the responsibility of determining if the leave should be designated as FMLA leave, and then giving the employee the appropriate notice.

Employee's obligations: The employee is responsible for giving notice to the employer that leave is required. Where the need for leave is foreseeable, the employee is required to give the employer 30 days' notice before the date the leave is to begin. If that is not possible, notice is required as soon as practicable. The new rule reinforces the requirement that employees advise employers in advance of FMLA leave absences, rather than allowing them up to two business days after an absence to report the potential FMLA leave, even when they could have provided notice earlier. Also, the rule requires employees to follow an employer's call-in procedures to report such absences, unless unusual circumstances are present.

Employer's obligations: When leave is requested, the employer has several notice responsibilities:

  1. Leave entitlement: Notice to the employee that the employer is treating the leave as FMLA leave and that the leave taken will be credited against the employee's FMLA leave entitlement for the 12-month period. The rule streamlines the prior notice rules and also increases the employer’s obligations to provide notice of the employee's FMLA rights. Employers must provide a general notice to employees through the poster or handbook, for example, or upon hiring if other written materials are not available. Electronic distribution is acceptable.

    Once leave is requested or the employer becomes aware of a potential FMLA-qualifying condition, the employer must provide: 

    The employer has five business days after obtaining knowledge of the potential FMLA leave to provide notice. The new law increases the employer's time to respond from two business days to five.
  2. Paid leave: An employee may take or employers may require concurrent use of accrued paid leave with the unpaid FMLA leave. The rule is changed to treat all forms of paid leave the same, rather than treating vacation leave different than sick leave, for example. The employee still must satisfy the employer's requirements for taking such paid leave concurrent with the unpaid FMLA leave.
  3. Key employee: If the employee is identified as a salaried "key employee," the employer may indicate that it is unable to keep the employee's position available until the FMLA leave is concluded. However, such notice typically must be given at the time leave is requested, when it begins, or as soon as the determination is made. The notice of the employee's "key employee" status also must provide the employee a reasonable time within which to return to work if the employee wishes to do so.

Benefits: Benefits other than group health insurance coverage need not be maintained by the employer while the employee is on unpaid FMLA leave. Employers are required to provide benefits other than group health insurance benefits on the same terms and conditions as they do to other employees on leave. Most employers will make arrangements with an employee to continue coverage of certain benefits, for example optional life insurance benefits, that otherwise may lapse during leave. The employer may require the employee to continue paying their premium directly while on leave or make other payment arrangements upon the employee's return to work, but such arrangements are as a courtesy rather than a legal obligation.

If the employee does not accept reinstatement at the conclusion of the FMLA leave, the employer is permitted to recover the cost of those benefits, unless the employee does not return due to the continuation, recurrence, or onset of a serious health condition which would entitle the employee to leave under FMLA, or other circumstances beyond the employee's control. When an employee elects, or the employer requires, paid leave to be substituted for FMLA leave, the employer may not recover its share of health insurance premiums for any period of FMLA leave covered by paid leave. An employee who returns to work for at least 30 continuous days is considered to have "returned" to work. 

As a reminder, the Minnesota Workers' Compensation Act, Minnesota Statutes Chapter 176, does not govern the employment relationship per se, and does not address an employer's obligation to provide or maintain employment-based benefits. But, other contracts, policies or regulations might create an obligation for an employer to maintain certain benefits while an employee is receiving workers' compensation benefits or while on leave due to a work injury. For example, if the employee is covered by a collective bargaining agreement, the contract may address how and to what extent employee's benefits are maintained or seniority and other benefit credits are accrued during leave. If the employer has a policy or procedure that it customarily follows in cases of an employee receiving workers' compensation benefits, those policies may create obligations over and above the obligations created by law.

Intermittent leave: The 2008 amendments allow employers to temporarily transfer employees taking planned or pre-scheduled intermittent leave to a position of equivalent pay and benefits. Also, intermittent leave may be recorded in the smallest time increments that an employer allows for other kinds of leave, rather than using the smallest increment for which the timekeeping system can record. If the employer accounts for other kinds of leave in increments of greater than an hour, the employer is required to account for FMLA leave in increments of no greater than one hour. The new rule also requires that employees taking intermittent leave make a "reasonable effort" to schedule their leave in a way that does not unduly disrupt the employer's business.

Perfect attendance awards: Under the new rule, an employer is allowed to deny a "perfect attendance" award or other bonuses and awards to an employee who has missed time from work due to FMLA-protected leave, when attendance or other criteria affected by the employee's absence is not satisfied. The employer must treat those employees taking non-FMLA-protected leave in the same manner.

Light duty: Because of some inconsistency in court decisions, the final rule confirms that any time the employee spends performing light duty work is not counted against their protected FMLA leave entitlement. An employee on FMLA leave may be offered a light duty assignment, but is not required to accept it. The employer can offer an injured employee work within his or her physical or scheduling restrictions during the healing period, especially if intermittent leave will be required to accommodate ongoing medical treatment. If the employee unreasonably rejects an offer of such work, workers' compensation benefits may be suspended. However, as noted above, an employee is not required to accept light-duty work if disabled due to a condition which would qualify the employee for FMLA leave. If an employee requests leave rather than accepting a return to limited duty employment, the employer will have to determine whether the employee qualifies for FMLA leave and, if so, will not be able to terminate the employee for absenteeism or take any other actions prohibited by the FMLA until the employee's entitlement to FMLA leave has been exhausted. 

Certification of fitness: Under the new rule, before returning an injured employee to work after FMLA leave, the employer may require a fitness-for-duty certification to address the ability to perform essential functions of the job. Also, a fitness-for-duty certification may be required by the employer if it has reasonable job-related safety concerns related to an employee returning to work after intermittent leave. The requirement of certification to return to work should be evenly applied to all employees returning to work after an injury.

The employer must notify an employee at the time the designation notice is provided that a fitness-for-duty certification will be required to return to work, and also provide the employee at that time with a copy of the essential functions of the employee's job that the fitness-for-duty exam will address.

Return to same or comparable job: Except for certain situations involving key employees, the employer must return the employee to the same position which the employee held at the commencement of the FMLA leave, or a comparable position, at the conclusion of the FMLA leave. Failure to return the employee to the same or a comparable job can obligate the employer to pay wages, employment benefits, or other damages.

Penalties: The rules are clarified to reflect that an employer may be liable for penalties if the employee can demonstrate individual harm, rather than imposing a "categorical" penalty even when no harm or prejudice resulted to the employee.

Idiopathic injuries

In Minnesota, as in a majority of jurisdictions, an injury caused by an idiopathic condition is not compensable. The word "idiopathic" as defined by the dictionary means: arising spontaneously or from an obscure or unknown cause, or peculiar to the individual. The Minnesota Workers' Compensation Court of Appeals in Duchene v Aqua City Irrigation, 58 W.C.D. 233 (1998) adopted the second definition of idiopathic, "resulting from a preexisting or underlying infirmity or disease personal to the employee."

An idiopathic injury would include the obvious: heart attack or strokes, seizures or dizzy spells when there is no work-related causal factor. An example of idiopathic injury would be someone sitting at a desk that suffers a heart attack. This is a condition wholly personal to the employee, and a non-compensable event. However, if the activities or conditions of employment increase the risk of injury, a wholly personal condition may become a compensable work injury. This is the classic "increased risk test" in Minnesota. So, if the employee suffers a heart attack or seizure, falls off his desk chair and hits his head on the corner of his desk, sustaining a head injury that results in injury or death, that injury would be compensable.

The case law in Minnesota presents some cases that are so similar factually that it is difficult to define any bright-line rules regarding idiopathic injuries, except in the most pristine case of an idiopathic fall to a flat surface. In analyzing the cases, very subtle fact distinctions can make the difference between a compensable versus non-compensable injury, and each claim is evaluated based on its unique circumstances.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.

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