× Posting of FMLA poster

× FMLA policy in handbook or policy manual (if employer has such a handbook or manual)

× Written guidance if no handbook or policy manual

× Written notice of FMLA rights and obligations to employees requesting leave (DOL's Employer Response to Employee's Request for Leave Form)

× Written notice of designation of leave as FMLA leave

× Written/oral notice of medical certification and fitness for duty certification requirements

× Written notice of key employee designation

Frequency of notice is generally dependent upon the type of FMLA leave take (continuous v. intermittent/reduced leave) and whether the employer's leave information changes.

An employer's duty to provide reasonable accommodation is triggered by an employee's request. However, depending upon the circumstances, an employer should consider initiating a reasonable accommodation discussion.

For paid FMLA leave, the employer's notification requirements for the particular paid leave being substituted apply, even if less stringent.

× A full-time employee who takes FMLA leave on an intermittent basis or on a reduced leave schedule must be afforded the same group health coverage as if full-time

For non-group health benefits, an employer is not responsible for maintaining coverage during an FMLA leave BUT an employer is required to reinstate an employee upon return from FMLA leave to equivalent benefits.

A full-time employee who becomes part-time because of a reasonable accommodation need only receive whatever benefit coverage is afforded to part-time employees (absent FMLA protection).

× Employer can only request information contained in DOL's Medical Certification Form and upon receipt of a completed Form cannot request additional information from the health care provider.

Caveat: A health care provider representing the employer may contact the employee's health care provider, with the employee's permission, to clarify and authenticate the certification.

Caveat: If the employee is on workers' compensation leave and the workers' compensation statute permits the employer to have direct contact with the employee's health care provider, the employer can follow the statute.

If the employer doubts the validity of the medical certification form, the employer can obtain a second opinion, at its expense. If the second opinion differs, the employer can require a third opinion, which is final and binding.

× Significant restrictions on second and third opinions

× Second opinion cannot be from a health care provider the employer regularly utilizes or contracts with

× Employee/family member must be reimbursed for reasonable out-of-pocket expenses incurred in obtaining the second/third opinion

× Employee/family member cannot be required to travel more than a reasonable commuting distance for the second/third opinion

× Notice of medical certification requirement should be in handbook and in Employer Response Form; then, only oral notice to employee of need for medical certification must be given -- otherwise, written notice must be given

Confidentially requirements similar to ADA apply to both employee and family member medical-related records

For a current employee, medical examinations may be required when

× There is a need to determine whether the employee is still able to perform the essential functions of the job

× If necessary to the reasonable accommodation process

× If required by applicable federal, state or local law as long as job related and consistent with business necessity

× If otherwise job related and consistent with business necessity

No restrictions on the selection or location of a physician or obtaining additional information from the employee's physician.

Medical information sought should be related to disability.

Medical records must be kept confidential, in a file separate from personnel files and in a separate locked cabinet. Only those with a true need to know should have access.

× Employee must be reimbursed for reasonable out-of-pocket expenses incurred in obtaining the second/third opinion.

× No restrictions on the selection or location of a physician or obtaining additional information from the employee's physician.

× Employer must have a uniformly applied practice or policy applicable to all employees, not just those returning from FMLA leave

× Notice of fitness for duty requirement should be in handbook and in Employer Response Form; then, only oral notice to employee of need for fitness for duty certification must be given -- otherwise, written notice must be given

× May seek certification only with regard to the particular health condition that caused the FMLA leave

× "Clarification" of the fitness for duty certification can be obtained by a health care provider employed by the employer, but only with the employee's consent

× An employer cannot seek a second or third opinion

× Fitness for duty certifications cannot be required for intermittent leaves

× ADA obligations must be met (see below)

× There is a need to determine whether an employee is still able to perform the essential functions of the job

× If necessary to the reasonable accommodation process

× If required by applicable federal, state or local law as long as job related and consistent with business necessity
× In all circumstances, must be job related and consistent with business necessity

No restrictions on contact with employee's physician or obtaining second/third opinion

Medical information sought should be related to injury/illness.

No restrictions on contact with employee's physician or obtaining second/third opinion.