June 22, 2010

Make Medical Certifications Part of Your FMLA Process (Part 1 of 2)

If you do not require employees to provide medical certification for FMLA leaves involving serious health conditions, you are missing out on an essential tool to ensure leaves are used properly.Are you like the majority of human resource professionals who have trouble determining when an employee has a serious health condition under the Family and Medical Leave Act (FMLA)? A recent survey by the Society for Human Resource Management (SHRM) found that almost 60 percent of the survey respondents indicated they had trouble determining whether an employee’s illness met the FMLA’s definition of a “serious health condition.” In addition, 39 percent felt they had granted FMLA requests that may not have been legitimate.

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So, how can you make sure that an employee’s medical condition really qualifies as a serious health condition that entitles the employee to FMLA leave? Fortunately, the FMLA provides a tool to verify an employee’s need for leave. Under the FMLA, you may require employees to provide medical certification of their, or their family member’s, serious health condition. This certification process allows you to get sufficient information to ensure you are granting FMLA leave to employees who legitimately need it. And, to make this use even more compelling, courts have determined that if you do not require medical certification, you may not be able to question an employee’s need for leave for a serious health condition.

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To help you understand how to use medical certification, here is an analysis of the FMLA statute, the DOL regulations, and recent court cases to provide some practical insights into the certification process. (For your reference, the FMLA regulations addressing medical certification are found in 29 C.F.R. §§825.305 and 825.306 and were updated in January 2009.)

This issue, we will address when medical certification can be required, how to notify employees of the requirement, what information may be requested, and the time frames for providing the certification. Next issue, we will focus on contacting the health care provider for more information, consequences for employees who fail to provide certification, second and third medical opinions, and the consequences for employers that do not require medical certification.

1. When can we require a medical certification?

You may require a medical certification when employees request leave for their own serious health condition or the serious health condition of a parent, spouse, or child.

(Medical certification also may be required when leave is requested to care for a seriously ill military servicemember, but the requirements are a little different. For this discussion, we will only focus on medical certification for serious health conditions.)

However, you may not require any type of medical certification for leaves taken to care for a newborn child or a child that is being placed with the employee for adoption or foster care.

2. Do we have to notify employees of the medical certification requirement?

Yes. If you require medical certification, you should notify employees of this fact, as well as the consequences of not providing the certification, in writing at the time the employee requests leave. Notice should be included in your FMLA leave policy as well as in the required FMLA notice that you provide when an employee initially requests FMLA leave.

3. What information can we ask for in the certification?

The FMLA regulations state that the medical certification must relate only to the serious health condition that is causing the current need for leave. In other words, you cannot ask for information about the person’s general health or any other medical conditions. You may ask for the following information, however:

— The name, address, telephone, and fax number of the health care provider and type of medical practice or medical specialty;

— The approximate date on which the condition commenced and its probable duration;

— A statement or description of appropriate medical facts, which must be sufficient to support the need for leave and may include information on symptoms, diagnosis, hospitalization, doctors visits, medications, and any necessary referrals for evaluation or treatment;

— If the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of the employee’s job as well as the nature of any other work restrictions, and the likely duration of such inability;

— If the patient is a covered family member, information sufficient to establish the need for care and an estimate of the frequency and duration of the need for care;

— If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment of the employee or a covered family member, information sufficient to establish the medical necessity for the leave and an estimate of the dates and duration of treatment and periods of recovery;

— If an employee requests leave on an intermittent or reduced schedule basis for the employee’s serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information sufficient to establish the medical necessity for the leave, and an estimate of the frequency and duration of episodes of incapacity;

— If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that the leave is medically necessary to care for the family member, or to assist in the family member’s recovery, and an estimate of the frequency and duration of the required leave.

The DOL has published two medical certification forms that you may use to obtain medical certification. Form WH-380-E is for use when the leave is for the employee’s own serious health condition, and Form WH-380-F is for use when the leave is to care for a family member. Although use of the forms is optional, the regulations state you generally may not require more information than what is asked for in the sample forms. (You can find a copy of the forms online at www.dol.gov/whd/forms/WH-380-E.pdf and www.dol.gov/whd/forms/WH-380-F.pdf.) Accordingly, you should consider using the sample forms to ensure compliance. If you choose to prepare your own medical certification forms, consult with legal counsel because the medical certification requirements are complex.

You should note, too, that the FMLA statute indicates that the medical certification generally may be considered sufficient if it states when the serious health condition began, its probable duration, the appropriate medical facts within the health care provider’s knowledge, and that the employee is unable to perform his job duties or, in the case of a family member, that the employee is needed to care for the family member. So, you may be required to accept a medical certification form with less information than requested.

4. What are the time frames within which we should request medical certification?

According to the FMLA regulations, you should request medical certification at the time the employee asks for leave or within the next five business days. If the leave is foreseeable, the employee ordinarily must provide the certification before the leave begins. If the leave is not foreseeable, certification should be requested within five business days after the leave begins, and you may require the employee to provide the certification within 15 calendar days after the request, or as soon as reasonably possible. You may also request certification at a later date if you have reason to question the appropriateness of the leave or its duration.

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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