June 28, 2010

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

Medical certifications can help you determine whether FMLA leave is really needed and ensure that employee rights under FMLA leave are understood and their obligations met under the law.

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In a previous post, “FMLA Guidelines for Employers,” we addressed four questions: when medical certifications can be required under the Family and Medical Leave Act (FMLA), how to notify employees of the requirement, what information may be requested, and the time frames for providing the FMLA medical certification.

In this next article, we will answer six more questions on FMLA medical certification, including how to contact the health care provider for more information, the consequences for employees who fail to provide certification, second and third medical opinions, and the consequences for employers that do not require medical certification for designation of FMLA leave.

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5. Can we contact the employee’s health care provider directly about the medical certification?

Only in limited circumstances. During the medical certification process, the FMLA generally does not allow you to have any direct contact with the health care provider of the employee, or of the employee’s family member, unless the employee voluntarily provides the employer with an authorization, release, or waiver authorizing you to communicate directly with the health care provider.

If you do not have such a voluntary authorization, the employee (or someone acting on the employee’s behalf) should forward the employer-provided medical certification form to the health care provider to complete and then return it to the employer. If the medical certification is complete and sufficient, you may not directly request additional information from the employee’s health care provider. However, without the employee’s permission, you may contact the health care provider for purposes of “clarification and authentication” of the medical certification after the employee has been given an opportunity to cure any deficiencies, as discussed above. To make contact with the health care provider, you may use your organization’s health care provider, a human resources professional, a leave administrator, or a management official, but not the employee’s direct supervisor.

“Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. “Authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the form was completed or authorized by the health care provider who signed the document. In both cases, employers may not ask for additional information beyond that required by the certification form and may need employee permission if the healthcare provider requires it to meet HIPAA’s privacy rules.

Note, too, that the regulations also allow you to contact the health care provider if the employee is receiving workers’ compensation and state law permits direct contact between the employer and the workers’ compensation health care provider.

6. What if the employee fails to provide medical certification?

If the employee does not provide proper medical certification within the required time period, employer rights under FMLA allow you to delay the leave until the certification is provided. If the employee never provides the certification, he is not considered to be on FMLA leave. However, you may still have to grant FMLA leave if the employee has made diligent, good faith efforts to obtain the medical certification but the health care provider has failed to provide it.

Further, if you find that the employee’s medical certification incomplete or insufficient, you must provide the employee seven calendar days (unless not practicable) to cure the deficiency. A certification is incomplete if you receive it but one or more of the entries has not been completed. A certification is insufficient if you receive a complete certification but the information provided is vague, ambiguous, or nonresponsive.

7. Do we have to accept the employee’s medical certification as the final word?

If you have some reason to doubt the validity of the certification, you have two options prior to the designation of FMLA leave:

— As described in # 6, above, you can ask the health care provider to verify that the information contained on the form was completed or authorized by the health care provider who signed the document.

— You also may require a second opinion from an independent health care provider that you select (but who does not regularly work for you). You are responsible for this expense. If the two opinions conflict, you may pay for a third and final binding medical opinion.

8. Can we require additional medical certifications during the leave?

Yes. You may require additional medical certifications of the continuing need for leave, but not more often than every 30 days, unless extenuating circumstances exist. The 30-day rule applies except in the following conditions:

(a) If the medical certification indicates that the minimum duration of the condition will exceed 30 days, then you must wait until the minimum duration expires before requesting a recertification, regardless of whether the leave is continuous or intermittent.

(b) You may request recertification in less than 30 days if the employee requests an extension of leave.

(c) You may request recertification in less than 30 days if circumstances described in the original certification (e.g. the duration or frequency of absences, complications, or severity of the illness) have changed significantly.

(d) You may request a recertification if you receive information that casts doubt upon the employee’s stated reason for the absence.

In all cases, you may request a recertification every six months. Even if the original certification indicates that the employee will need intermittent or reduced schedule leave for more than six months (e.g. for a lifetime condition), you are permitted to request recertification every six months. You may require employees to provide the same information for recertifications as provided for the initial certifications, and employees have the same obligations to provide a complete and sufficient recertification. However, no second or third recertifications may be required.

In addition, you may require an employee to provide a new medical certification in each subsequent leave year for ongoing serious health conditions. The new medical certifications are subject to the provisions for authentication and clarification, as well as those for second and third opinions.

9. Can we keep the medical certification in the employee’s personnel file?

No. All medical information obtained in connection with FMLA leave should be kept in a confidential medical file separate from an employee’s general personnel file.

10. What if we do not require employees to provide medical certification?

The FMLA does not require employers to ask for medical certification. However, if you do not ask for medical certification, you are missing out on a tool that can help you verify the need for FMLA leave as well as the nature and scope of the leave.

Further, according to court decisions in recent years, if you do not require medical certification, you may not be able to challenge an employee’s need for medical leave or leave to care for a seriously ill family member. For example, in Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir.), cert. denied, 531 U.S. 871 (2000), the court determined that since the employer did not require medical certification for FMLA leaves and accepted the employee’s vague doctors notes, it forfeited its right to challenge whether the employee had a serious health condition under the FMLA.

Regards,

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

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