New Family and Medical Leave Act Rules
Greg Bell, Director
(This article appeared in the May/June 2009 issue of The American Postal Worker magazine.)
The APWU has been meeting with the Postal Service regarding the implementation of changes to the Family and Medical Leave Act – changes that the Bush administration implemented just four days before President Obama took office. The APWU has updated our FMLA forms to provide additional information for medical certification requirements.
Although the law does not require that medical certification be provided in any specific format, the new FMLA regulations require additional information on the certification form. The new APWU FMLA forms now include space for 1) the Health Care Provider’s telephone number, fax number, and type of medical practice/specialty; and 2) if the employee is requesting intermittent or reduced-schedule leave to care for a family member with a serious health condition, a brief statement explaining why such care is necessary.
Included among the changes to the FMLA regulations are: a narrowing of the definition of “serious health condition;” requirements for additional medical documentation; requirements that medical documentation be provided more frequently; and permission for employers to contact an employees’ healthcare provider directly, without the employees’ knowledge or permission. The new rules also shorten the amount of time that employees have to provide notice of leave while giving employers more time to provide notice of eligibility, and more time to designate the leave as FMLA.
The new regulations also provide special leave rights for military families. The rule allows employees in military families to take leave to care for ill or injured service members and to take leave to help manage the affairs of service members who are away on active duty. The APWU has created two new FMLA forms for employees in military families. A summary of the changes can be found at www.apwu.org/issues-fmla/analysis.htm.
The APWU forms have also been renumbered. APWU Form #1 is for leave for an employee’s own serious health condition; APWU Form #2 is for leave to care for a family member’s serious health condition. APWU Forms #3 and #4 are similar to the Department of Labor’s new WH-384 and WH-385 Forms, for use by employees who are requesting military family leave under the new regulations. APWU Form #3 is for certification of a qualifying exigency and APWU Form #4 is for military caregiver leave.
Please note that two new optional medical certification forms created by the Department of Labor to replace the old WH-380 permit the healthcare provider to provide information beyond what is actually required. For example, although the new optional WH-380 forms expressly allow the healthcare provider to state the employee’s medical diagnosis on the form, the provider is not required to do so.
The APWU’s position has not changed: An employee’s medical diagnosis is private health information that is not required on the form. Employees who choose the optional WH-380 forms rather than the APWU forms should tell their healthcare provider to state only the basic “medical facts” – not the diagnosis or prognosis concerning the general nature of their condition.
We have received complaints from the field, however, that some local managers are refusing to accept APWU’s FMLA Medical Certification Forms, and insisting that employees must use the new optional DOLWH-380 forms. Postal Service headquarters has informed us that they have not instructed managers to refuse to accept APWU’s forms.
Incomplete or Insufficient Medical Certification
Regardless of which forms are used, if the certification is incomplete or insufficient, the new regulations require the Postal Service to state, in writing, what additional information is necessary to make the certification complete and sufficient, and to give employees the opportunity to submit the additional information.
The Postal Service will be using DOL Form WH-382, Designation Notice, in order to meet its obligation to designate leave as FMLA-protected and inform the employee of the amount of leave that will be counted against the employee’s FMLA leave entitlement. The WH-382 form is also used to inform employees what additional information may be needed, and whether a second or third opinion is being requested by the Postal Service.
We have also been notified that when additional information is required, the Postal Service will make a copy of the medical certification that was submitted, and then return it to the employee for the additional information.
Despite the fact that an employee may have submitted the medical documentation using an APWU Medical Certification Form, or any other format for FMLA medical documentation, the Postal Service will return the employee’s medical certification, along with the optional DOL formsWH-380-E (Certification of Health Care Provider For Employee’s Serious Health Condition) or WH-380-F (Certification of Health Care Provider For Family Member’s Serious Health Condition).
It is the APWU’s position that once an employee has submitted an APWU Medical Certification Form, there is no need or requirement to use a different format or the optional WH- 380 forms to provide additional required information. Employees should use the same form, and simply have their healthcare provider add required information on the original certification, or provide it on a separate sheet of paper.
If you have any questions about whether management has a right to certain information, contact your NBA or the Industrial Relations Department.