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The SESCO Report – April 2011

How to Collect Employee Medical Information Under New FMLA Rules

THE LAW: The FMLA allows eligible employees to take up to 12 weeks of unpaid leave annually to recover from a serious health condition or to care for an immediate family member with a serious health condition.

To determine whether an employee or family member has a condition that meets the FMLA's definition of "serious health condition," employers should review the medical certification they receive from the employee's health care provider.

WHAT'S NEW: In January 2009, the Bush administration published updated FMLA regulations. One key section clarifies the rules regarding who may request additional information about an employee's FMLA certification-and how it should be sought.

The good news: The new rules allow employers to directly contact an employee's health care provider to seek clarification on an employee's FMLA certification form.

HOW TO COMPLY: To maintain employee privacy, the new rules clarify who can make such inquiries.

Who can inquire? An employee's "direct supervisor" is prohibited from requesting certification details from the health care provider. Instead, it must be either a "health care provider, a human resources professional, a leave administrator (including third-party administrators), or a management official."

What can you inquire about? Employers can't ask health care providers for additional information beyond what the certification form contains. Health care providers are allowed, but not required, to provide a diagnosis of the patient's condition.

In the past, medical certification requests were tightly constrained, permitting employers to collect information relevant only to the malady that created the need for the FMLA leave.

By contrast, employees seeking accommodation for a disability under the ADA had to enter an interactive process with the employer in which they were free to volunteer information.

Under the new regulations, employers can use information gathered in ADA accommodation discussions or medical certification requests and workers' compensation proceedings, as well as the FMLA certifications, to determine whether leave qualifies for FMLA.

If the employer can make the determination from information garnered during ADA accommodation discussions, there is no need to seek FMLA medical certification as well.

When can you inquire? If you find that the information on an employee's medical certification is insufficient to make an FMLA determination, you must specify in writing what information is lacking and give the employee seven calendar days to correct the deficiency.

When can you request recertification? Employers can require employees to provide a new certification at the beginning of each FMLA year. This is true regardless of when the leave began.

Employers can request recertification every six months for employees with chronic conditions. If the employee's condition changes within six months, the employer can request a recertification. Unlike initial certifications, employers may not request a second or third opinion on a recertification.

Final tip: Employers should update their FMLA policies and procedures to reflect the new regulations.

What's now considered a 'serious health condition'?

Under the new regulations that took effect in January, a "serious health condition" that qualifies for FMLA leave means an illness, injury impairment or physical or mental condition that involves at least one of the following:

Hospital care: Inpatient (overnight) care in a hospital, hospice or residential care facility, including any period of incapacity or treatment connected to inpatient care.

Absence plus treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves one of the following:

Two or more visits to a health care provider. The first visit must occur within seven days of the first day of the incapacity, and both visits must take place within 30 days.

A regimen of continuing treatment, with the first visit taking place within seven days of the onset of the incapacity.

Pregnancy: Any period of incapacity due to pregnancy or for prenatal care.

Chronic conditions requiring treatments: A chronic condition that extends over a period of time and requires periodic treatments. "Periodic visits" are defined as at least two visits to a health care provider per year. During that period, the incapacity may be episodic rather than continuous. Examples include asthma, epilepsy or diabetes.

Permanent/long-term conditions requiring supervision: A permanent or long-term incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of (but need not be receiving active treatment by) a health care provider. Examples: Alzheimer's or the terminal stages of a disease.

Multiple treatments (nonchronic conditions): Any period of absence to recover from or receive multiple treatments for restorative surgery after an accident or injury, or for a condition that would probably result in a period of incapacity of more than three consecutive calendar days in the absence of medical treatment, such as cancer (chemotherapy, etc.), severe arthritis (physical therapy) and kidney disease (dialysis).

How to Draft a Social Networking Policy

Whether they're shooting off their own tweets or following others, employees using Twitter-the fastest growing social media site-are creating liability and PR risks with their 140-character rants, raves and company gossip.

Example: A high-profile public relations executive landed in Memphis and promptly posted on his Twitter account, "I would die if I had to live here." The problem: Memphis is home to FedEx, one of the PR exec's largest clients. Oops. Needless to say, FedEx reps were not amused.

The trend isn't confined to Twitter, Facebook or other social media tools. Any kind of blog or video can spread your employees' "youthful indiscretions" around the world in seconds.

Example 2: When two employees at a North Carolina Domino's pizza delivery store were bored one evening, one filmed the other sticking a piece of cheese up his nose and then placing it on a sandwich soon to be delivered to a customer. They posted the video on YouTube. More than half a million hits later, Domino's had a viral gross-out PR nightmare on its hands and the health department at its doorstep.

In an ideal world, both of these incidents would be covered by a policy reading, "For gosh sakes, people, use your heads!" But behavior is easier to legislate than common sense, which means crafting policies that rein in how employees may use technology on the job.

Defining the Technology and The Problem

According to a recent survey conducted by Deloitte, 22% of employees say that they use some form of social networking five or more times per week, and 15% of employees admit they access social networking while at work for personal reasons. Yet, only 22% of companies have a formal policy that guides employees in how they can use social networking at work.

Before we can figure out what to do about these exploding media at work, we first need to know exactly what we are dealing with. So, for the uninitiated, the following is a short lesson on the various types of social networking that are likely being accessed from your workplace right now.

Blogs: Blog is short for weblog. Blogs either provide commentary on news or a particular subject, or serve as an online diary. There are hundreds of millions of blogs on the Internet, many updated every day.

Facebook: Facebook started as an online tool for college and university students to connect with each other. It has since expanded to allow anyone over the age of 13 with a valid email address to open a free account. It is loosely organized into a variety of networks based on schools, location, employers, charities and other causes. Connections are known as "friends." People update with short written blurbs about what they're doing, pictures, video and the like. Facebook has over 200 million registered users.

LinkedIn: LinkedIn is an online network for professionals. It allows people to search and connect via alma mater, location, employer or various user-created groups. It has over 41 million members.

Twitter: Twitter is the latest big thing in social networking. It is known as "micro-blogging." "Tweets" are text-based posts of up to 140 characters, displayed on the user's profile page and delivered to followers, other users who have subscribed.

Crafting the Policy: The 7 Key Questions

A perfect social networking policy to cover these new media could be drafted using only a few words: "Be mature, be ethical, and think before you type." Ultimately, you may decide that such brevity is what you want for you business. For the sake of completeness, though, here are the seven most important questions to ask yourself when drafting a social networking policy.

1. How far do you want to reach? Social networking presents two concerns for employers-how employees are spending their time at work, and how employees are portraying your company online when they are not at work. Any social networking policy must address both types of online use.

2. Do you want to permit social networking at work, at all? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking. Further, a blanket ban is also hard to monitor and enforce.

3. If you prohibit social networking, how will you monitor it? Turning off Internet access, installing software to block certain sites or monitoring employees' use and disciplining offenders are all possibilities, depending on how aggressive you want to be and how much time you want to spend watching what your employees do online.

4. If you permit employees to social network at work, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.

5. Do you want employees to identify with your business when networking online? Employees should be made aware that if they post as an employee of your company, the company will hold them responsible for any negative portrayals. Or, you could simply require that employees not affiliate with your business and lose the networking and marketing potential Web 2.0 offers.

6. How do you define "appropriate business behavior?" Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. Anything in cyberspace can be used as grounds to discipline an employee, no matter whether the employee wrote it from work or outside of work.

7. How will social networking intersect with your broader harassment, technology and confidentiality policies? Employment policies do not work in a vacuum. Employees' online presence-depending on what they are posting-can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update and fine-tune other policies.

SESCO is a specialist in reviewing and developing policy and employee handbooks. Feel free to contact SESCO should you wish to have your current employee handbook reviewed and to explore social networking and other important policies to manage employees in the 21st Century.

How Compatible Are You with Your Employees, Your Boss and Co-Workers?

We often find ourselves "at odds" with co-workers, employees and managers as well as friends and relatives. We often become frustrated when we don't see "eye to eye" with those we work and communicate with. Many times we internalize this frustration creating "personality" conflicts. However, we must understand that we are all different and subsequently, all have different personality make ups.

Once we understand our own personality profile and learn to identify the personality profile of those of whom we work and communicate, frustration can be removed and relationships developed — because "it's" not personal — it's just that some personality make ups are more compatible with others. There is a logical reason behind both successful relationships as well as those that frustrate us. Consider the compatibility chart shown in this article:

It's important that you as an individual understand your personality profile by taking the DiSC Personality Profile which can be completed online. Once you understand yourself, then you can learn to understand and "read" others, even if they have not taken the personality profile. In a worklife setting, we recommend that teams of employees to include reporting relationships take the personality profile and subsequently openly discuss the team's make up as well as individual profiles so that we can strengthen our communications and team work, thereby reducing frustration and stress.

Feel free to contact SESCO to explore the personality profile system and its tremendous advantages in making your life less stressful both at work and at home.

Special Thanks to New SESCO Clients!

Jackson Energy Coop
McKee, KY

Motorvation Motor Cars
Lexington, KY

Bill's Used Parts
Christiansburg, VA

City Employee Credit Union
Knoxville, TN

Breaks Interstate Park
Breaks, VA

Harrisonburg Community Health Center
Harrisonburg, VA

Crossrock Drilling, LLC
Pikeville, KY

SESCO Client Feedback

"SESCO was very informative, quick and easy to work with." ~ Shelley Ayervais, Allen Plumbing, Inc.

SESCO Client Inquiry Staff Response

Question: When an employee is terminated, how soon must we provide the final paycheck?

Answer: The requirements for final compensation to a terminated employee vary from state to state. Some states require that a final paycheck be issued on the last day worked, while others allow up to one month for final compensation. In situations where commissions or incentives are part of the compensation, the time requirement is normally extended. Some states make a distinction as to the circumstances for the employee's separation. Generally speaking, the employer may be required to issue final pay sooner to an employee who is discharged, compared to an employee who resigns. Also, be aware that some states require that unused vacation or paid-time-off be included in the final pay. For questions about a specific situation, contact SESCO Management Consultants.

SESCO's Professional Development Institute Training Programs

Human Resource Management in Perspective An Introduction
Recruiting/Selection and Screening
Developing a Compensation Plan
Wage-Hour Regulations
HR Compliance Issues
Total Performance Management
A Positive Approach to Discipline
Employee Handbook Development
Employee Recruitment and Retention
Overview of Basic Employment Regulations
Who Is A Leader?
Your Personality Profile and Management Style DiSC
Employee Motivation and Rewards Systems
The Art of Delegation
Employee Performance Management System
Decision Making and Problem Solving
How To Reduce Employment Liability
Maintain Positive, Union-Free Employee Relations
Harassment Awareness Management/Employee
Superior Customer Service
Vital Learning Training System (14 basic supervisory modules)