As an employer, managing Family and Medical Leave Act (FMLA) leave is likely a process you are already well-acquainted with. It provides eligible employees up to 12 weeks of unpaid, job protected leave in a 12-month period to manage serious health conditions- whether they are their own or that of another family member.
Amid a global pandemic, FMLA leave has become an even more prominent compliance issue for hourly workforce employers than before. Reports from the Disability Management Employer Coalition (DMEC), show a significant challenge around one issue in particular: certifications.
Whilst FMLA protection is affording much-needed job security to workers being affected by sporadic COVID-related circumstances, the process for compliantly overseeing FMLA certification can feel risky without additional HR guidance. Here are some of the most frequently asked questions answered by HR Dive to help ease your mind.
FMLA Certification During COVID-19
If my employee tests positive for COVID-19, are they qualified for FMLA leave?
Technically if you have any policies that indicate the employee may be qualified for FMLA, it is your responsibility to send rights and responsibilities along with your certification request form within five days of being alerted that they need FMLA leave. Furthermore, you must allow 15 calendar days for your employee to return the certification request.
If you receive a medical note or positive test result from your employee directly, the CDC recommends that you not wait to have the employee quarantine as the certification process is getting fulfilled.
Does my employee need to have two or more healthcare visits to qualify for FMLA if they test positive for COVID-19?
No. Provisions within the FMLA indicate that obtaining tests to determine whether or not an individual has a serious health condition like COVID-19 is possible without the two-visit requirement.
For an individual that is out of work for more than three consecutive calendar days, treatment must include two or more visits to a health care provider (includes televisits) within 30 days or one visit to a provider within seven days. For individuals who have contracted the coronavirus, it is more than likely they will be in contact with their healthcare provider in some capacity.
Note: Make sure you know your state-specific requirements. Some states prohibit employers from asking for documentation related to COVID-19 or other respiratory illnesses.
What happens if certification request notifications don’t give an employee a full 15 days to respond?
Experts suggest that the official window of opportunity for employees does not begin until it's reasonable to assume the employee has received notice of their next step. As it is not uncommon for notices to get lost, it is best to be reasonable and lenient. No matter which distribution method you decide to use, via email or post, it may be most practical to add an additional five days to be safe.
If you choose to extend the period, be sure you extend the same courtesy to all employees consistently.
Can I accept something other than the provided certification form from my employee as valid certification?
Yes. There is no official requirement to use the model forms that are provided by the Department of Labor (DOL). As the optional federal forms can be overwhelming and result in incomplete responses, you can use whatever form and whatever format you think best, so long as you aren’t violating any privacy requirements with your modified questions.
You cannot refuse a certification just because it is not completed on your company's form. You must accept a complete or sufficiently completed certification from your employee’s healthcare provider, regardless of its format.
How often can I prompt the recertification process?
You can request recertification no more than every 30 days, and only in combination with an absence from the employee, unless the medical certification indicates that the minimum duration of the condition is more than that 30-day period. If that is the case, you must wait until the minimum duration expires. For requesting the recertification of a long-term medical condition: that can happen every six months.
Exceptions: You can request recertification in less than 30 days if your employee requests an extension of leave, their circumstances have significantly changed, or you receive information that casts doubt upon the employee's stated reason for FMLA leave.
FMLA Help from the Experts
When you make EPAY Systems your workforce management provider, you gain access to our HR Consulting Services, as well as our all-in-one Human Capital Management system. We’ll make it easy to generate the reports, forms, and employee records required to achieve FMLA compliance with our award-winning software and team of certified specialists.
Check out our other FMLA tips in, “FMLA Compliance: What Are Your Call-In Procedures?” or request a demo to see how else we can serve your HR compliance needs today!