This is the second installment in our series, 10 Tips to Reduce Risk of Employment Claims in 2023. Each tip will discuss an issue our Labor & Employment Practice saw last year, along with suggested action steps that employers should take to address the issue before it escalates to a lawsuit. Tips #1 and #2 recommended steps to update essential workplace policies. In this post we discuss tips #3 and #4 of our series, which concern common medical leave and accommodations issues.

Tip #3: Advise Your Employees about the Availability of Family Medical Leave, and Process Leave as Such When Applicable.

Over the past year, we have noticed that many smaller employers (with fewer than 50 employees) do not realize that they must now (actually, as of January 1, 2022) provide Family Medical Leave to their employees. Prior to 2022, these employers were not required to provide such leave to their employees under the previous version of the Connecticut Family and Medical Leave Act (CT FMLA) or its federal counterpart.

The revised CT-FMLA now requires private employers with at least one employee to provide job-protected FMLA leave for up to twelve weeks to their employees who are dealing with a serious medical condition themselves, or to care for a family member, or for the birth or adoption of a child. Changes to the law also include revisions to eligibility criteria for taking CT FMLA leave, the number of weeks of leave available, how leave is calculated, and an expanded definition of who qualifies as a “family member,” among others. In addition, income substitution benefits are available from the Connecticut Paid Leave Authority to employees on CT FMLA leave.

As 2022 was the first year of the amended CT-FMLA, there was – and still is -- a lot of confusion as to process, time frames, and forms. Employers sometimes do not realize that the Paid Leave Authority does not process everything – employers have obligations, too. Many employers still have not revised their policies and procedures, nor notified employees of their leave entitlement.

See our other blog posts about this topic here, here, and here.

Action Steps:

• Create or update your FMLA policy and distribute it to your employees if you have not already done so. Make sure your employees have sufficient notice that Family Medical Leave and income substitution benefits are available to eligible employees by updating your employee handbook and sending out a memo.
• Revise the forms and processes used previously for the FMLA to account for the significant changes made to the law, or if you are a smaller employer, create forms and processes to use and reference when an employee takes FMLA leave. Be sure to train your managers on the FMLA revisions and its requirements. Consider using a checklist for each employee who requests FMLA leave to stay on track with deadlines and requirements. The Connecticut Department of Labor has standard forms including a Notice of Eligibility and Rights and Responsibilities, Designation Notice, Medical Certification for Employees Serious Health Condition, and a sample notice.
• Make sure you properly apply and process FMLA leave if an employee is eligible. When an employee misses work, or requests time off, due to their own or a family member’s medical condition, analyze potential exposure under all statutes, including the Americans with Disabilities Act and the Worker’s Compensation law, examine how the availability of income substitution benefits interacts with existing PTO, vacation, sick time, and short-term and long-term disability policies, and adjust those policies accordingly. 
• If you are feeling overwhelmed or confused when drafting requests for medical reports, analyzing the reports you receive back, or requesting and reviewing FMLA paperwork – get help!

Tip #4: Make Sure to Request Medical Documentation to Assist with FMLA and ADA issues.

FMLA and ADA requests can be convoluted, and it’s easy to feel an impulse to bypass the “red tape” that comes with the process.

For example, we have noticed that employers often do not request medical documentation to support Family and Medical Leave requests, or to support employee claims for certain accommodations at work. Alternatively, employers are accepting vague notes from medical providers that do not provide the information they need, and are afraid to request more information for fear of violating employee confidentiality or the ADA itself.

Under the Americans with Disabilities Act, employers must engage in an interactive process to determine the “reasonable accommodation” that they should provide for an employee with a disability. By obtaining proper medical documentation, and subsequently participating in the interactive process, employers balance the accommodations that would be the most effective in supporting the requesting employee against the burden that it would take to provide those accommodations.

Obtaining proper medical documentation helps avoid common issues that arise in handling ADA and FMLA requests, and in turn, helps employers to plan and meaningfully participate in the interactive process and reduce exposure.

Action Steps:

• Require that your employees have their providers fill out the state FMLA forms when commencing leave: the Medical Certification for Employee’s Serious Health Condition, or the Medical Certification for Care of a Family Member. If leaves are extended beyond the anticipated date the employee was supposed to return to work, require the healthcare provider to re-certify.
• When an employee desires to return to work after taking leave for their own serious medical condition, require a fitness for duty certification before their return. Request information on any restrictions or accommodation the employee needs upon their return.
• If you have an employee who appears unable to perform the functions of their position because of a medical condition, and/or the employee requests an accommodation, you must engage in the interactive process under the ADA and state law.
• Write a formal letter to the employee requesting they obtain a detailed medical report from their health care provider. You can also follow up requesting more info if the employee originally provides you with a vague note that does not contain the information you need. Attach a job description to the letter if it would be helpful for the doctor to use.
• If you’re feeling overwhelmed navigating the process, worried about the specific language to request medical documentation, wondering what makes a “reasonable” accommodation, or need assistance evaluating the provider’s response for what steps to take, get help!

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