On June 27, 2012, the Wage and Hour Division (WHD) of the US Department of Labor (DOL) issued a 16-page, “plain language” booklet titled Need Time? The Employee’s Guide to The Family and Medical Leave Act (the “Guide”). The Guide was released during a webinar hosted by the WHD. View the Archived Webinar

The DOL described the Guide “[a]s part of the Department’s continuing effort to spread the word about the FMLA and make the FMLA more accessible...”

The Guide is divided into the following sections:

• Who Can Use FMLA Leave? (Coverage and Eligibility)

• When Can I Use FMLA Leave? (Qualifying reasons to take FMLA)

• What Can the FMLA Do for Me? (FMLA rights and protections)

• How Do I Request FMLA Leave?

• Communication With Your Employer (Employer and Employee Notices)

• Medical Certification

• Returning to Work (Reinstatement Rights)

• How to File a Complaint

The Guide also includes three relatively easy-to-follow and informative flow charts that detail how FMLA coverage and eligibility are determined, map out the FMLA leave process, and describe how the FMLA medical certification process works. It addresses the FMLA definition of “son or daughter”, including in loco parentis relationships even if the employee has no biological or legal relationship to the child, as discussed in the DOL’s June 2010 FMLA Administrator Interpretation. It also provides detailed information on how an employee can file an FMLA complaint with the WHD if they believe their FMLA rights have been violated. Finally, the Guide includes a list of DOL web site resources containing information about the FMLA, and a link to the WHD’s website on the FMLA.

The Guide only briefly summarizes the relatively recent FMLA requirements on military family leave entitlements. The WHD intends to issue a booklet on this topic in the future.

To access the Guide, click here.

Issues for Employers

The most obvious question employers will ask about the Guide is “what should we do with it?” The answer is they should read it, because it provides valuable, plain language insight into how the DOL interprets the FMLA.

Another issue is whether employers should provide copies of the Guide to their employees. There is no legal requirement that they do so. Although there are some advantages to distributing the Guide to employees, particularly to those workers who do not want to apply for or use FMLA leave, there are also some clear disadvantages.

First, the information about filing a complaint with the DOL could encourage some employees to assert claims they may not otherwise be inclined to institute.

Second, the Guide is somewhat misleading on an issue of critical importance under the FMLA and related laws like the Americans with Disabilities Act (ADA). It advises employees that “[y]ou do not have to tell your employer your diagnosis.” The FMLA regulations expressly state that an employer can require an employee’s health care provider to provide the following information:

A statement or description of appropriate medical facts regarding the patient’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment...

29 C.F.R. § 825.306(a)(3).

Although there technically may be a difference between requiring employees and requiring their health care providers to provide such information, that difference is obfuscated by the ADA, administered by the Equal Employment Opportunity Commission (EEOC), which expressly permits employers to make inquires to employees about their medical condition where it is “job-related and consistent with business necessity.” See 29 C.F.R. §1630.14(c). EEOC Guidance on this topic further suggests that if an employee is not meeting job requirements due to a medical condition, the employer may inquire into the specifics of the medical condition. Additional information may be found by clicking here.

Of course, any information obtained about an employee’s medical condition must be maintained in separate files on a confidential basis in accordance with the ADA and similar state laws.

At Arent Fox, we spend much of our time advising our clients on dealing with ill and injured employees, and defending them in related litigation. If you have any questions about this Alert or the FMLA or the ADA, please feel free to contact the author or any other contact you may have in the Arent Fox Labor & Employment Group.