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  • ACOEM Comments on Department of Labor's Proposed Revisions to the Family and Medical Leave Act

    April 10, 2008 

    Richard M. Brennan
    Senior Regulatory Officer
    Wage and Hour Division
    Employment Standards Administration,
    U.S. Department of Labor
    200 Constitution Avenue, NW.
    Washington, DC 20210

    Re: RIN 1215-AB35, Notice of Proposed Rulemaking, Family and Medical Leave Act of 1993

    Dear Mr. Brennan:

    The American College of Occupational and Environment Medicine (ACOEM) appreciates the opportunity to respond to the Request for Information on the Family and Medical Leave Act of 1993. 

    ACOEM represents more than 5,000 physicians and other health care professionals specializing in the field of occupational and environmental medicine (OEM). Founded in 1916, ACOEM is the nation's largest medical society dedicated to promoting the health of workers through preventive medicine, clinical care, disability management, research, and education.

    Although the FMLA has generally been successful, it is appropriate and timely to review the program and consider revisions to the regulations.  

    The two specific concerns with the FMLA rules most often cited by our members are the definition and application of the term “serious health condition” and the use of intermittent leave.

    Serious Health Condition

    The term “serious health condition” is unnecessarily vague.  Employees, employers and medical providers would be well served if the FMLA were to more clearly define the criteria for considering a health condition serious.  For example, the current regulatory definition of “continuing treatment by a health care provider,” as set forth in 29 CFR 825.114, could be revised to “continuing treatment by a health care provider for a condition that interferes with employment and the discharge of family responsibilities and that would significantly worsen or fail to improve without treatment.”    

    In the FMLA, one of the definitions of serious health condition requires more than three consecutive calendar days of incapacity plus “two visits to a health care provider.” ACOEM is aware of the difficulties in setting guidelines for levels of severity based on frequency of encounters for treatment. The period within which these visits should occur is not specified. ACOEM sees problems with this definition, as both over-inclusive and over-restricted, in different ways. 

    There should not be a presumption that a serious health condition exists simply because an employee sees a health care provider more than once.   A single doctor’s visit where the employee is given a single prescription, such as an antibiotic, and then has a single follow-up visit should not meet the criteria for a “serious health condition.”  

    It is our understanding that the Tenth Circuit has held that the “two visits to a health care provider” actually occur within the more-than-three-days period of incapacity in order to qualify as a serious health condition (See Jones v. Denver Pub. Sch., 427 F.3d 1315,1323 (10th Cir. 2005)). Because the period within which the two visits must occur is not specified in the Act, the Department proposes that the two visits must occur within 30 days of the period of incapacity. ACOEM believes that this is excessively restrictive at a time when healthcare facilities and practitioners are oversubscribed and a large proportion of the employed population is uninsured. ACOEM suggests two visits within a period of 90 days as a more reasonable alternative.

    Chronic Condition

    The Department does propose one modification to the definition of a chronic serious health condition. Current § 825.114(a)(2)(iii) provides that a chronic serious health condition ‘‘[r]equires periodic visits for treatment’’ (§ 825.114(a)(2)(iii)(A)). The current regulations do not define the term ‘‘periodic.’’  In the proposal the Department defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year since it is also open-ended in the current regulations. The Department believes that employees with chronic serious health conditions generally will visit their health care providers at least that often.  ACOEM agrees that two visits per year are acceptable as a minimum number of visits. 

    Appropriate Healthcare Provider 

    Also, the current rule puts the entire decision on the primary physician, who may perceive he/she owes a duty only to the patient.  We strongly oppose the employer being given the right to have a non-medical employer representative communicate with the employee about protected health information. Rather, the rules should permit the employer to select a physican with expertise in disability management to have a role in the process for determining when a “serious health condition” exists.  Further, the employer should be encouraged in the FMLA to assist the employee to consider alternatives for a better health solution than taking time off from work.

    A fundamental problem with the FMLA is that the treating physicians are often not trained in disability prevention and management.  When patients have chronic physical complaints, physicians typically focus on the physical complaints and ignore the non–medical factors that may be fostering illness behavior.  Ignoring the psychosocial determinants of illness, the untrained provider prescribes more time off from work.  This common therapeutic pattern may actually prolong recovery and reinforce the sick role.  If treatment goals are focused on alleviation of symptoms rather than on functional capacity, there is an increased risk that the patient will begin a downward spiral from anger and helplessness to depression, and withdrawal, loss of identity, and finally into the sick role and chronic disability.  At a minimum, the Department should encourage treating physicians to collaborate with the employer’s physician for the following purposes: 1) determine specific psychological, behavioral or other barrier related to the patient’s ability to stay at or return to work; 2) provide insight on aspects of the patient’s history and current situation with bearing on the delayed recovery; and 3) recommend appropriate treatment goals and interventions.

    Fitness-For-Duty Certification

    Under the current rules, an employer may require an employee to provide a fitness-for-duty certification.  The existing regulation provides that the certification itself need only be a simple statement of ability to return to work.  The proposed rule makes two changes to the fitness-for-duty certification process. It permits the employer to require that the certification process address the employee’s capacity to perform essential functions of the job. The proposed rule also permits an employer to require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave, where reasonable job safety concerns are present. Although ACOEM supports both of these changes, ACOEM does recognize the potential burdens on employees who may need to provide a fitness-for-duty certificate within a short period of time.  ACOEM urges the Department to consider having the employer bear the cost of fitness for duty certifications when the employee is returning from intermittent leave. 

    Recertification 

    The proposed rule adopts as policy a letter of opinion dated 2005 from the Wage and Hour Division that allowed employers to request a new medical certification each leave year for medical conditions that last longer than one year. 

    The proposed rule extends the minimum applicable time period for recertification from 30 days to 6 months. Under the current regulations, employers may request an unqualified recertification no more often than every 30 days, allowing this only in the context of an actual absence. If a recertification has a stipulated duration, the employer may not require recertification until that time has expired. The 30-day period was clearly intended for acute conditions and acute exacerbations of chronic conditions, not periodic monitoring of permanent or recurrent conditions in which impairment varies little or is predictable. This has led to the possibility of abuse, since requiring frequent recertification can be used to pressure or harass the employee. Because many stakeholders have indicated that the regulation is unclear as to the employer’s ability to require recertification, especially when the duration of a condition is described as "lifetime" or if the prognosis is unknown. The proposed rule allows an employer to request recertification of an “ongoing” condition (implying a chronic condition unlikely to change in such as way as to improve function) at least every six months, in conjunction with absence. ACOEM agrees that this is reasonable. 

    Medical Information and Employers’ Prerogative 

    The proposed rule permits the employer to contact the employee's health care provider, but the employer is not required to utilize a health care provider to contact the employee's provider. ACOEM objects to this broad right of access on the grounds that the employee's privacy is not protected.  

    Medical information should be handled by individuals trained and held accountable for maintaining confidentiality. It is of paramount importance to maintain strict confidentiality of sensitive health information on the diagnosis of the condition, on the cause of the condition, and on matters unrelated to but obtained incidental to evaluation of the condition. It is too easy for sensitive health information to be inadvertently disclosed. ACOEM believes that there should be a gatekeeper on both sides, such that the employee’s healthcare provider protects the legitimate interest in confidentiality of the employee and the healthcare provider acting on behalf of the employer protects the employer from inadvertently receiving information the employer should not possess.  

    ACOEM does not support allowing or requiring employee health care providers to provide a diagnosis of the patient’s health condition as part of the certification. To do otherwise would invalidate HIPAA and the principle of patient confidentiality. Such information should only be disclosed with written permission from the employee. 

    ACOEM proposes that the rule allow an employer when not using a health care provider acting on the employer’s behalf to obtain information from the employee’s healthcare provider solely by presenting three allowable questions: 

    1. Is the employee capable to perform the job duties as described?
    2. Does the employee require an accommodation to perform the job duties?
    3. As a result of the health condition, would performing the job place the employee in a situation in which he would present a threat to himself or to others in the workplace? 

    Thank you for your consideration of these comments. 

    Sincerely, 
    Robert McLellan
    Robert K. McLellan, MD, MPH, FACOEM
    ACOEM
    President