8 Compliance Tips for Employers Using Medical Certifications Under the FMLA
Director of Compliance
The federal Family and Medical Leave Act (FMLA) allows employers to require employee submission of a medical certification to support the worker’s need for leave either for their own serious health condition or to care for a covered family member with a serious health condition. An important objective of the certification is for employers to obtain necessary information regarding the anticipated duration of the employee’s leave.
To help you navigate the FMLA medical certification process, here are eight important compliance tips that employers should keep in mind:
1. Utilize U.S. Department of Labor (DOL) Forms
Although no particular certification form is required, the DOL provides optional forms that employers and workers can use. A link to the medical certification forms for the employee’s own serious health condition or to care for a covered family with a serious health condition, as well as other DOL documents, can be found here: https://www.dol.gov/agencies/whd/fmla/forms
2. Ensure Sufficient Content of Medical Certification
The certification should include information such as:
- Appropriate medical facts sufficient to support the need for leave
- When the serious health condition began
- The probable duration of the serious health condition
- How long the employee is likely to be unable to work
- Whether the medical necessity for leave is continuous or intermittent
- Contact information for the healthcare provider and the type of medical practice/specialization
3. Be Conscious of Timing
In most cases, employers should request the medical certification at the time the employee gives notice of the need for leave or within five business days thereafter or, in the case of unforeseeable leave, within five business days after the leave begins. Employees must provide the certification to their employer within 15 calendar days after the request, unless it is impracticable to do so despite the employee’s good faith and diligent effort. Employers may always provide workers with more than 15 days to submit the requested certification.
4. Request Further Information for Insufficient Certification
Upon receiving the medical certification, employers may identify, in writing, any deficiencies in the certification and ask the employee to correct the information within seven calendar days (unless impracticable under the circumstances despite the employee’s diligent and good faith efforts). If the deficiencies are not cured in the resubmitted certification, FMLA leave may be denied.
5. Clarify and Authenticate
If an employee submits a sufficiently completed medical certification signed by a healthcare provider, employers cannot request additional information from the provider. Nevertheless, employers may use a healthcare provider, a human resource professional, a leave administrator, or a management official to contact the employee’s health care provider for purposes of clarifying and authenticating the certification (whether an initial certification or recertification) after the employee has been given a chance to cure any deficiencies. Under no circumstances, however, may the employee’s direct supervisor contact the employee’s healthcare provider.
6. Request Recertification
Employers may generally request recertification no more often than every 30 days and only in connection with an employee’s absence. If the medical certification indicates that the minimum duration of the serious health condition exceeds 30 days, employers must wait until after the minimum period expires before requesting recertification.
In all cases, however, employers can request a recertification of a medical condition every six months in connection with an absence. Finally, employers may request recertification in fewer than 30 days if:
- The employee requests an extension of leave
- The circumstances of the previous certification change, or
- The employer receives information casting doubt on the employee’s stated reason for leave or the validity of the certification
7. Obtain Second and Third Opinions if Necessary
Employers may require a second medical opinion (at their expense) regarding the certification if there are concerns about the certification’s validity. A third opinion may be obtained if the first two opinions differ.
8. Health Insurance Portability and Accountability Act (HIPAA)
FMLA medical certifications are considered employment records, not healthcare records, and thus are not protected by HIPAA.
Final Thoughts: Knowledge Is Power
Although employers are not required to use medical certifications under the FMLA, it is the best tool they have to combat leave abuse. When medical certifications and recertifications are properly used, the leave creates less workplace disruption, leading to improved productivity. If employers require a medical certification as a condition to granting FMLA leave, employees must be informed in the written FMLA rights and responsibilities notice. Employers should remember that individual states, such as California, can have their own rules regarding the contents of medical certifications for use in conjunction with their jurisdiction’s family and medical leave law.
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