mployersshould not be tempted to disregard the DOL's guidances and regulations,especially since the courts rely upon these guidances to help interpret the FMLA.
Theyshould instead remember that the regulations do not have the power to change oramend the existing language of the Act. This is important because many of theDOL's regulations remain unchallenged, rendering them viable and instructive. Further, many DOL regulations have withstoodchallenges in court. The regulations include three actions that employers arespecifically permitted to take when reviewing leave requests:
1. Medical certification may be requested. Claims of "seriousmedical conditions" must be documented and certified. The certificationshould include relevant medical facts that support the health care provider'sdesignation of the condition as "serious" for purposes of the FMLA.
2. Second and third opinions are permissible. If employers havereason to doubt a medical certification, they may require employees to getsecond and even third opinions, at the employer's expense. The health careprovider who will offer the second opinion may be designated by the employer solong as the provider is not employed in the company's medical department. Untilthe second opinion is provided, the employee is provisionally entitled tobenefits under the FMLA.
3. Requests for recertification are permitted. If there is a chronicor long-term medical condition, if absences change significantly, or there isreason to doubt the employee's stated reasons for leave, an employer may requesta re-certification. However, second or third opinions on re-certification arenot permissible.
Notonly are these actions prudent, but may support an employer's defense in an FMLAmatter. 3d U.S. District Court of Appeals, in fact, specifically cited anemployer's failure to take these actions as an inadequacy in the administrationof an employee's request for FMLA leave. In Victorelli v. Shadyside Hospital,128 F.3d 184 (3d Cir. 1997). In that case, the Circuit Court, which coversPennsylvania, New Jersey, Delaware, and the Virgin Islands, chided the Hospitalfor not taking the actions that were clearly available, as doing so might havehelped the hospital deliver a prompt and appropriate determination regarding anemployee's request for FMLA leave.
Whatemployers should do
Ifan employee requests a medical leave, it is imperative that to review therequest carefully, and to examine all supporting information and documentation,in order to determine all obligations under the FMLA. Because the provisions ofthe Act are complex, it helps to approach each request carefully, taking care torequire medical certification, get additional medical opinions and requirere-certification for chronic illnesses. It is also important to apply theprocedures uniformly to all requests so that it is clear to your employees thatthere is a procedure for processing FMLA requests.
Institutingthese precautions helps to effectively verify and respond promptly to requests,and should help to prevent FMLA violation claims. Further, by attending torequests immediately, employees can be provided with accurate informationregarding their eligibility and the appropriateness of their requests. Failureto act quickly and in accordance with DOL regulations leaves employers at riskof costly and time-consuming lawsuits, and the attendant business disruption anddamages that may result.
Theinformation contained in this article is intended to provide useful informationon the topic covered, but should not be construed as legal advice or a legalopinion. Also remember that state laws may differ from the federal law.