Welcome to Federal Workers Compensation Coffee break Podcast. I am your host Dr. Taylor. I am an OWCP consultant who has been assisting and working with clients for over 29 years in the work comp arena. Here at this podcast we discuss all sorts of topics related to federal workers compensation, Department of Labor, OWCP, FECA ACT, FERS, longshore-maritime, DOD contractors, VA benefits. I cover these relevant topics in a short coffee break style format because we like to discuss topics that are related to helping you the government employee with filing your claim, understanding your rights and responsibilities, relevant rules and provisions. I also like to cover topics that people are always wanting information on to help you successfully navigate the convoluted waters of federal claim filing. I do this to assist you, you and your doctor or your coworkers with claim filing denials or with appropriate filing of benefit claims, disability or injured worker claims.
Ok let’s begin on FMLA General Information Q& A
(Q) What does the Family and Medical leave act provide?
The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave.
The FMLA also provides certain military family leave entitlements. Eligible employees may take FMLA leave for specified reasons related to certain military deployments of their family members. Additionally, they may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.
Coverage(Q) What types of businesses/employers does the FMLA apply to?
The FMLA applies to all:
public agencies, including local, State, and Federal employers, and local education agencies (schools); and
private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.
Eligibility
(Q) Who can take FMLA leave?
In order to be eligible to take leave under the FMLA, an employee must:
work for a covered employer;
have worked 1,250 hours during the 12 months prior to the start of leave; ( special hours of service rules apply to airline flight crew members )
work at a location where the employer has 50 or more employees within 75 miles; and have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.
Hours of Service Requirement
(Q) Does the time I take off for vacation, sick leave or PTO count toward the 1,250 hours?
The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. ( Special hours of service rules apply to airline flight crew members. )
Unpaid leave
(Q) Is my employer required to pay me when I take FMLA leave?
The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.
Qualifying conditions
(Q) When can an eligible employee use FMLA leave?
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:
for the birth of a son or daughter, and to bond with the newborn child;
for the placement with the employee of a child for adoption or foster care, and to bond with that child;
to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;
to take medical leave when the employee is unable to work because of a serious health condition; or
for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
The FMLA also allows eligible employees to take up to 26 workweeks of unpaid, job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.
Birth and bonding
(Q) Are there any restrictions on when an employee can take leave for the birth or adoption of a child?
Leave to bond with a newborn child or for a newly placed adopted or foster child must conclude within 12 months after the birth or placement. The use of intermittent FMLA leave for these purposes is subject to the employer’s approval. If the newly born or newly placed child has a serious health condition, the employee has the right to take FMLA leave to care for the child intermittently, if medically necessary and such leave is not subject to the 12-month limitation.
(Q) When can a parent take leave for a newborn?
Mothers and fathers have the same right to take FMLA leave to bond with a newborn child. A mother can also take FMLA leave for prenatal care, incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can also use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth.
Intermittent/reduced leave schedule
(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.
(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?
Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.
Serious health condition
(Q) What is a serious health condition?
The most common serious health conditions that qualify for FMLA leave are:
conditions requiring an overnight stay in a hospital or other medical care facility;
conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).
(Q) Can I continue to use FMLA for leave due to my chronic serious health condition?
Under the regulations, employees continue to be able to use FMLA leave for any period of incapacity or treatment due to a chronic serious health condition. The regulations continue to define a chronic serious health condition as one that (1) requires “periodic visits” for treatment by a health care provider or nurse under the supervision of the health care provider, (2) continues over an extended period of time, and (3) may cause episodic rather than continuing periods of incapacity. The regulations clarify this definition by defining “periodic visits” as at least twice a year.
(Q) Can I take FMLA leave for reasons related to domestic violence issues?
FMLA leave may be available to address certain health-related issues resulting from domestic violence. An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.
(Q) Can I qualify for FMLA leave when I donate an organ to a non-relative?
Yes, an organ donation can qualify as a serious health condition under the FMLA when it involves either inpatient care or continuing treatment as defined in the regulations. Organ-donation surgery commonly requires overnight hospitalization and that alone suffices for the surgery and the post-surgery recovery to qualify as a serious health condition.
Certification
(Q) Am I required to prove that I have a serious health condition?
An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.
(Q) What happens if my employer says my medical certification is incomplete?
An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The employer must state in writing what additional information is necessary to make the certification complete and sufficient and must allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts.
(Q) Can my employer make me get a second opinion?
An employer may require a second or third medical opinion (at the employer’s expense) if he or she has reason to doubt the validity of the medical certification.
(Q) Do I have to give my employer my medical records for leave due to a serious health condition?
No. An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.
(Q) How soon after I request leave does my employer have to request a medical certification of a serious health condition?
Under the regulations, an employer should request medical certification, in most cases, at the time an employee gives notice of the need for leave or within five business days. If the leave is unforeseen, the employer should request medical certification within five days after the leave begins.
An employer may request certification at a later date if he or she has reason to question the appropriateness or duration of the leave.
(Q) May my employer contact my health care provider about my serious health condition?
The regulations clarify that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under the regulations, employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. In order to address employee privacy concerns, the regulations makes clear that in no case may the employee’s direct supervisor contact the employee’s health care provider. In order for an employee’s HIPAA-covered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.
(Q) Must I sign a medical release as part of a medical certification?
No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. The regulations specifically state that completing any such authorization is at the employee’s discretion. Whenever an employer requests a medical certification, however, it is the employee’s responsibility to provide the employer with a complete and sufficient certification. If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied.
(Q) How often may my employer ask for medical certifications for an on-going serious health condition?
The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days. For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. The regulations also allow an employer to request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
Additionally, employers may request a new medical certification each leave year for medical conditions that last longer than one year. Such new medical certifications are subject to second and third opinions.
Ok…Lets try some Examples:
1. Janie takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks. Because her certification covers a six-week absence, her employer cannot ask for a recertification during that time. At the end of the six-week period, Janie asks to take two more weeks of FMLA leave; her employer may properly ask Janie for a recertification for the additional two weeks.
2. Joe takes eight weeks of FMLA leave for a back operation and intensive therapy, and gives his employer a medical certification that states that he will be absent for eight weeks. At the end of the eight-week period, Joe tells his employer that he will need to take three days of FMLA leave per month for an indefinite period for additional therapy; his employer may properly request a recertification at that time. Six months later, and in connection with an absence for therapy, the employer may properly ask Joe for another recertification for his need for FMLA leave.
(Q) Can employers require employees to submit a fitness-for-duty certification before returning to work after being absent due to a serious health condition?
Yes. As a condition of restoring an employee who was absent on FMLA leave due to the employee’s own serious health condition, an employer may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit a certification from the employee’s own health care provider that the employee is able to resume work. Under the regulations, an employer may require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the position if the employer has appropriately notified the employee that this information will be required and has provided a list of essential functions. Additionally, an employer may require a fitness-for-duty certification up to once every 30 days for an employee taking intermittent or reduced schedule FMLA leave if reasonable safety concerns exist regarding the employee's ability to perform his or her duties based on the condition for which leave was taken.
(Q) What happens if I do not submit a requested medical or fitness-for-duty certification?
If an employee fails to timely submit a properly requested medical certification (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave.
If an employee fails to submit a properly requested fitness-for-duty certification, the employer may delay job restoration until the employee provides the certification. If the employee never provides the certification, he or she may be denied reinstatement.
(Q) What happens if I am mistreated for taking FMLA leave or if I am denied FMLA leave?
Your employer is prohibited from interfering with, restraining, or denying the exercise of FMLA rights, retaliating against you for filing a complaint and cooperating with the Wage and Hour Division (WHD), or bringing private action to court. You should contact the WHD immediately if your employer retaliates against you for engaging in any of the legally protected activities. For additional information, call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4-USWAGE (1-866-487-9243).
Additional Information / Complaints
(Q) Who do I contact if I need additional information or I want to file a complaint?
If you have questions, or you think that your rights under the FMLA may have been violated, you can contact the Wage and Hour Division (WHD) at 1-866-487-9243. You will be directed to the WHD office nearest you for assistance. There are over 200 WHD offices throughout the country staffed with trained professionals to help you. To find the one nearest you, go to http://www.dol.gov/agencies/whd/america2 .
Click here for the NALC FMLA forms.
NALC Form 1: Medical Certification-Employee's Own Serious Health Condition
NALC Form 2: Medical Certification-Family Member's Serious Health Condition
NALC Form 3: Certification of Qualifying Exigency for Military Family Leave
NALC Form 4: Certification for Serious Injury or Illness of Current Covered Servicemember for Military Caregiver Leave
NALC Form 5: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
NALC Form 6: Employee's Notification of New Child in the Family
FMLA Administration Human Resources Share Service Center (HRSSC) - Contact Information by Postal Service Area
Well that does it for this episode of Federal Workers Comp Coffee break Podcast.
I want to thank you for listening and want to remind you to share this podcast with other federal workers you think would benefit from this information. Also if you need an approved medical provider for your DOL -OWCP Or Longshore case in Florida you can find me in Tampa at two different locations and in Jacksonville. To make a consult with me to discuss your case or if you know someone if Florida who is recently injured you can call the clinic at 813-877-6900. Also if you are in another state and you want me to assist you with claim questions or assistance for your doctor you can email me at fedcompconsultants@protonmail.com