When — and How– to Require Certification of FMLA Leave Requests

Welcome back to the confusing world of FMLA. Last week’s post (which, if you missed, you can find here) established, generally when an employee is and is not eligible for unpaid, job (and benefits) protected leave under the Family Medical Leave Act. In addition, though, an otherwise eligible employee who fails to timely comply with his/her employee’s request for certification from a health care provider may also be ineligible for FMLA leave. Employers often overlook the in’s and out’s of FMLA certification, which, in turn, often comes back to bite the employer, so let’s give this issue its due attention, after the jump…

You can require health care provider certifications when your employees request FMLA leave to care for their own or a family member’s serious medical condition. (Remember that “family member” means spouse, parent (or step or adoptive or foster parent) or child (or step or foster or adoptive child). You may not request certification to support a request for leave to bond with a newborn baby or one newly placed for adoption or foster care. (I am not going to talk about certification requirements with respect to military family leave in this post, but may do so in a later post.) You do not have to request certifications for leave time meant to care for a serious medical condition. It is in your interest to do so, however, because it will put you in a better position to protect yourself against FMLA abuse. Assuming you do, you must provide your employee a written notice of rights and responsibilities when s/he first requests FMLA leave. That notice must include notification that s/he must provide certification from a health care provider and the number of days within which s/he must provide that certification. You may also request certification at a later date if you have reason to question the appropriateness or duration of the leave. If you wish to do so, make sure you document such requests and your reasons.

What happens after you request medical certification? The employee must provide “complete and sufficient certification”, usually within 15 days of your request. The employee bears the cost of the certification and of ensuring that you receive the certification. If the certification is “incomplete” or “insufficient” you must then  advise your employee as to what additional information is necessary to render the certification “complete and sufficient”, and you must provide the employee at least 7 calendar days to do so. A certification is “incomplete” if one or more applicable entries on the form are left blank. The certification is “insufficient” if the information is vague, unclear or otherwise not responsive to the question. Information you may request in the certification includes: a) the health care provider’s contact information; b) date the serious medical condition began and its expected duration; c) appropriate medical facts about the condition; d) if for an employee’s own serious medical condition, information showing that s/he cannot perform the essential functions of his/her job; e) if for a family member’s medical condition, a statement of the care needed; f) if for intermittent leave, information showing either the need for intermittent leave or a reduced schedule and either the dates of any planned leave or estimated frequency or duration of expected incapacity. The United States Department of Labor has developed model forms that you can use, but does not require using them. You can find those forms here. I strongly recommend using them. Why? First, why re-invent the wheel? Second, if you use those forms, you will not risk allegations that you requested more information than you were entitled to request. There really is no downside. If you do use your own forms, make sure that you only request information relevant to the medical condition that forms the basis for the leave request.

Assuming you properly request certification you may deny the leave request only if:  a) the employee either does not provide it,  s/he provides incomplete or insufficient certification; and s/he fails to correct the insufficiency after you gave him/her adequate time to do so.

Once you receive a complete and sufficient medical certification, you  generally cannot request additional information. You may, however, have a human resources or similar representative–not the employee’s direct supervisor— contact the health care provider to verify that s/he actually completed or authorized the information provided on the form or ask questions to clarify the handwriting or response(s) contained on the form. Suppose you receive a complete and sufficient certification, but you have reason to doubt its validity? First, document the fact that you have doubts and your reasons. You may then request a second certification. You may even choose the health care provider, as long as it is not someone you use on a regular basis. If the second certification differs from the first, you may request a third certification, using a health care provider that both you and the employee choose. The third opinion becomes final. You must bear all costs associated with second and third certifications,and, pending the second or third opinion/certification, the employee will receive provisional FMLA leave. If the employee or his/her family member is in a foreign country when the serious medical condition arises,  you must accept  the certification, including second and third opinions from a foreign health care provider. The employee bears the cost of any necessary translation.

Can you request a re-certification? Generally you cannot require re-certifications more often than every thirty days, without a) a change of circumstances since the previous certification or reasons that cause you to doubt the employee’s stated reasons for absence or continued validity or; b) a request for extension. If the expected duration of the medical condition is longer than 30 days, then you usually must wait until that minimum duration expires before you may request re-certification. If the duration is indefinite, you may then request re-certification for absences every six months. You can request the same information requested in the original certification. You can also ask the health care provider if the employee’s actual absence(s) are justified by his/her medical condition. The employee bears the costs associated with the re-certification. You cannot ask for a second or third opinion when seeking re-certification.

Can you require fitness-for-duty certifications? If so, when and how? Come back for next week’s post to find out. See you then.

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.

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