Up North--February 2008

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February 2008

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

THIS MONTH'S TOPICS:

PREVENTING NEEDLESS WORK DISABILITY
U.S. DOL PROPOSES NEW REGULATIONS FOR FMLA
EMPLOYEE ELIGIBILITY FOR VOCATIONAL REHABILITATION SERVICES

PREVENTING NEEDLESS WORK DISABILITY

In 2006, the American College of Occupational and Environmental Medicine (ACOEM) published a guideline entitled "Preventing Needless Work Disability by Helping People Stay Employed." The guideline discusses the stay-at-work/return-to-work (SAW/RTW) process, outlines ideas for improving the process, and describes best practices. The full text of the guideline is published on ACOEM's website. Over the next several months, this newsletter will feature some of the guideline's recommendations.

On Jan. 31 and Feb. 1, 2008, approximately 90 Minnesotans involved in all levels of the return-to-work process gathered to discuss putting this guideline into practice. The two-day summit was part of the "60 Summits" project. Several representatives from SFM Companies attended this interesting conference, which involved medical providers, insurance personnel, employers, employee and union representatives, attorneys, and representatives from the rehabilitation process. The Minnesota group is continuing to develop a strategy and work plan for collaboration in the SAW/RTW process.

The guideline has the overriding theme of preventing disability that is not medically required. Complete disablement from work is often medically contraindicated, as explained by the guideline, although modified or alternate work may be required following a disabling condition or injury. The guideline provides criteria to assist in having parties decide whether disablement from work is medically required, medically discretionary, or medically unnecessary. Examples of circumstances that may create medically unnecessary absence from work include poor communication, psychosocial factors that intertwine with medical issues (e.g. job dissatisfaction), or automatically equating a medical diagnosis with need for removal from work despite no or less than total functional impairment. The guideline emphasizes the danger created by having an employee spend extended unnecessary time away from work, stating that "system-induced disability becomes a significant risk." Early intervention and prompt return-to-work efforts following a disabling or potentially disabling event is critical. In terms of helping to manage the exposure of a workers' compensation claim, early return to work is one of the best tools over which an employer has some control.

U.S. DOL PROPOSES NEW REGULATIONS FOR FMLA

Earlier this month, the U.S. Department of Labor published the proposed rules amending the Family and Medical Leave Act (FMLA), in follow up to the legislation that expanded the FMLA's reach to certain military-related leaves. The new law allowing leave to care for an injured service member became effective January 28, 2008, but the remaining leave provisions concerning leave for a "qualifying exigency" related to a service member's active duty, are not effective until the final regulations are approved. The Department of Labor is encouraging employers to provide leave for "qualifying exigencies" related to military service in the meantime, though, despite the lack of definition over that term at this time.

The proposed regulations also address some areas of the FMLA that employers have found problematic over the years, including issues relating to sufficient advance notice of the need for leave by employees, the definition of serious health condition, direct communications by employers with doctors, and intermittent leave. With respect to clarification of medical certification forms supporting leave, the proposed regulations do not allow the employer to require further documentation or clarification from the medical provider if the initial certification is sufficiently complete. However, if the medical certification form is not complete, or if it requires clarification, the employer should first ask the employee to obtain further clarification and "cure" the deficiencies. If even further clarification is required or the employee fails to obtain the necessary clarification, the proposed regulations allow the employer to directly contact the medical provider for purposes of authentication or for purposes of clarification. Clarification may include interpreting the physician's writing, or obtaining additional explanation regarding a specific response. The employer may not ask for any medical information beyond the scope of the certification form.

The HIPAA (Health Insurance Portability and Accountability Act) requirements apply to these direct communications between employer and medical provider. Therefore, the employer must obtain a written medical authorization from the employee in order to directly communicate with the provider. If the employee declines to provide the necessary authorization, and the medical certification remains insufficient, the employer may deny the request for FMLA leave.

A complete copy of the proposed regulations as published in the Federal Register can be found at http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. Public comments on the proposed regulations close on April 11, 2008. The Department has created a temporary labor poster insert reflecting the new military leave rights.

EMPLOYEE ELIGIBILITY FOR VOCATIONAL REHABILITATION SERVICES?

In order for an employee to receive vocational rehabilitation services, he must establish that he is a "qualified employee" as defined by Minnesota Rule 5220.0100, subp. 22. A "qualified employee" is:

An employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:

Is permanently precluded or is likely to be permanently precluded from engaging in the employee's usual and customary occupation or from engaging in the job the employee held at the time of injury;
Cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and
Can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician's opinion of the employee's work ability.

Minn. Rule 5220.0100, subp. 22.

The "rehabilitation consult" is the meeting between the QRC and employee where the QRC evaluates and determines whether the employee is qualified for services. An employee may refuse employment, relocate, retire, voluntarily terminate employment, and still remain entitled to vocational rehabilitation assistance, if the employee can establish that he meets the criteria of the rule. The employee's withdrawal from the labor market, retirement, refusal of suitable employment, and other circumstances may affect the scope of ongoing rehabilitation services or other benefits, but establishing an employee as a "qualified employee" for purposes of receiving statutory rehabilitation service is a relatively easy burden to satisfy.

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.