For employees, the federal Family and Medical Leave Act (FMLA) is a great benefit. It grants them twelve weeks of job-protected (but unpaid) leave each year for the birth, adoption or foster placement of a child, the employee’s own serious health condition, or to care for a family member with a serious health condition (on the meaning of serious health condition, see here). For employers, the FMLA is a mixed bag. Most employees using FMLA leave have a clear need. But some employees abuse FMLA leave. The law gives employers a few tools to monitor employees’ FMLA absences, but it requires employers to adhere to a strict set of deadlines, especially deadlines relating to written notices and medical certifications. This blog post focuses on medical certifications of an employee’s need for FMLA leave.
BACKGROUND
The chief way an employer can get the information it needs to determine whether an employee really qualifies for FMLA leave is to ask the employee’s health care provider (or from the health care provider of the employee’s family member, where leave is requested to care for a family member with a serious health condition) for a medical certification. The FMLA does not require employers to obtain a medical certification. It instead allows an employer to request certain information from the health care provider to verify that an employee or family member has a serious health condition. An employer may not ask for certification for leave related to the care of a newborn or newly adopted child. See here at paragraph (a) for general rule for requiring medical certification and here for a DOL Opinion Letter.
Through the medical certification, the employer may ask for information sufficient to establish the employee’s need for leave, including the following information, with respect to the employee or family member, as appropriate:
Employers are entitled to relevant medical facts that support the employee’s request for leave, which may include symptoms, diagnosis, and treatment plans. See 29 CFR 825.306.
Medical certifications are an excellent tool for ensuring that employees receive their statutory right to FMLA leave when—and only when—they are entitled to it. Adopting a policy of requiring all employees who request FMLA leave for their own or a family member’s serious health condition to provide medical certifications can also help employers ensure that they are treating all employees equally. The U.S. Department of Labor (US DOL) has developed medical certification forms for use by employers. Employers may develop their own forms but in almost all cases, they should simply use the US DOL form. The US DOL forms ask everything that an employer is entitled to ask, but no more. That keeps an employer from making prohibited inquiries inadvertently. The US DOL form for certification of the employee’s health condition is designated as Form WH-380E and may be found here. The form for certification of a family member’s health condition is designated as Form WH-380f and may be found here.
An employer requiring a medical certification must give an employee requesting FMLA leave written notice of the need for a medical certification within five days of the request for FMLA leave (where the need for leave has been foreseeable) or within five days after the leave has begun (where the need for leave has not been foreseeable). Employers must also provide employees with a written Notice of Eligibility and Rights and Responsibilities (the NERR) within five days of a request for leave or after leave has begun. If an employer will require a medical certification, it must say so on the NERR. In practice, most employers attach the medical certification form to the NERR.
Where employees give advance notice of their need for leave, obtaining medical certification before the leave begins is generally not a problem. When the need for leave is not foreseeable and employees cannot give the requisite advance notice, the employer must give the employee fifteen calendar days to obtain the certification. If the employee does not return the certification within the 15-day window, the employer may deny FMLA leave, although the regulations require an employer to make an exception when it has not been “practicable” for the employee to obtain the certification despite his/her diligent, good faith efforts to do so. An employee who is not on FMLA leave does not have job protection.
At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification. If the employer does not do so, it cannot require certification as a condition of granting FMLA leave. See here.
When Should an Employer Request a Medical Certification?
If an employer does not ask for medical certification at the outset, the window for requesting it closes, except that the regulations permit the employer to request certification at some later date if it later has reason to question the appropriateness of the leave.
Employer Entitled to Complete and Sufficient Certification
An employer is entitled to a complete and sufficient certification. For a certification to be complete, all the applicable entries on the form must be filled out. A complete certification may still be insufficient if the information provided is vague, ambiguous, or non-responsive. If an employer receives an incomplete or insufficient certification, it must advise the employee in writing what additional information must be provided. The employee has seven (7) calendar days in which to provide the required information. FMLA leave may be denied to any employee requesting leave who fails to return a medical certification or who fails to return a complete and sufficient certification after being given seven days to resubmit it. See here. In that case, the job-protection provisions of the FMLA do not apply.
What Is A “Sufficient Certification?”
A sufficient certification is one that at a minimum tells the employer the date on which the serious health condition began, how long the condition is likely to last, the probable duration of the condition, and appropriate medical facts about the condition. The certification must also contain a statement that the employee is unable to perform the functions of the position of the employee. An FMLA certification for leave to care for a family member with a serious health condition must contain a statement that the employee is needed to care for the family member and an estimate of the amount of time that the employee is needed to care for the family member – that is, a spouse, son, daughter, or parent.
When an employee is requesting intermittent leave or leave of a reduced schedule for planned medical treatment (chemotherapy, for example, or dialysis), the certification must also set out the dates on which such treatment is scheduled and the how long the treatment will last. The certification is not sufficient without that information. If intermittent or reduced schedule leave is being requested, a sufficient certification must include a statement of the medical necessity for intermittent or reduced-schedule leave, as well as the expected duration and a schedule of the intermittent or reduced schedule leave. See here.
Who Qualifies as a Healthcare Provider for FMLA Certification Purposes?
The FMLA regulations specify the types of healthcare providers eligible to certify an employee’s or a family member’s need for FMLA leave. The list is exclusive – if a type of provider is not on the list, then the employer need not accept their certification – but it is also broad. The following healthcare professionals may certify the need for FMLA leave when the qualifying condition is within their area of specialization:
Second Opinions
Where the employer doubts the validity of the information provided on a medical certification, it may require the employee to undergo an examination for a second opinion with a health care provider of the employer’s choice at the employer’s cost. If the employee’s and the employer’s health care provider disagree, the employee must obtain a certification from a third provider (jointly agreed upon by the employer and employee), again at the employer’s cost. The decision of the third provider is binding. See here.
Recertifications
Employers may seek recertifications during the leave under certain circumstances. Normally, an employer may not ask for recertification any more frequently than every 30 days. If the initial certification is for more than 30 days, the employer must wait for the initial leave period provided in the certification to run before asking for recertification. Recertification every thirty days may be required only when employees are taking leave for their own serious health condition. Recertification may not be required if the leave is to care for a family member with a serious health condition. However, recertification may be required every six months for both an employee’s own serious health condition and for a family member’s serious health condition. Recertification at six months is allowed even where the healthcare provider’s original certification was for more than six months. See here.
Confidentiality of Medical Certification Information
Keep any medical certification forms and any other FMLA-related medical information in a separate file. Wherever it is located, the medical information will be considered confidential under North Carolina’s personnel records acts but keeping FMLA-related information separate will make it easier to ensure that confidential medical information is not seen by persons who may be reviewing an employee’s personnel file for other legitimate reasons.