The Medical Certification Process Under the FMLA

This update is the fourth in a series of articles explaining requirements under the Family and Medical Leave Act (FMLA). Revised regulations, which took effect January 16, made sweeping changes to FMLA requirements and procedures.

The FMLA permits employers to require an employee to provide a medical certification to support the need for leave due to a serious health condition. This article discusses the current FMLA rules regarding the medical certification process for employees seeking leave due to the employee's own serious health condition or the serious health condition of the employee's spouse, son or daughter, or parent. Certifications for purposes of military family leave are beyond the scope of this article.

Timing Requirements

The new regulations increase the time period for the employer to request an employee to furnish medical certification from two business days to five business days following the employee's request for leave or the commencement of an unforeseen leave. Employees must normally provide certification to support the need for leave within 15 calendar days after the employer's request, unless the employer specifies a longer period of time.

It is the employee's responsibility to follow up with the employer to make sure the certification is timely received and to follow up with the health care provider if it is not. However, employers must allow more time to employees who are unable to provide the certification within 15 days despite the employee's diligent, good-faith efforts. It is the employee's responsibility to keep the employer apprised of his or her efforts to obtain the necessary certification.

Whether the employee has made diligent, good-faith efforts to submit a timely certification depends on all the circumstances, including the employee's efforts to schedule appointments and to follow up with the office of the health care provider. Because employees must rely on the cooperation of third parties such as health care providers and family members to obtain the certification, the commentary to the regulations cautions employers not to penalize employees for circumstances outside their control.

Content of Medical Certifications

The regulations specify the information that the employer may require a health care provider to supply. The Department of Labor (DOL) has developed two new optional forms for this purpose—one for certification by the employee's own health care provider and another for certification by the health care provider of the employee's family member in need of care.

Employers may use a different form of their own, but employers may not require any additional information for the certification beyond the information specified in the regulations and contained in the model DOL forms. In all cases, the information on the certification form must relate only to the serious health condition giving rise to the need for leave.

However, the regulations permit employers to seek additional information for purposes of workers' compensation benefits, paid disability or other paid leave. Employers may deny payments or benefits if an employee fails to provide the additional information, but such failure must not affect the employee's entitlement to take unpaid FMLA leave. Similarly, nothing in the FMLA prevents employers from following the permissible procedures for requesting medical information under the Americans with Disabilities Act.

Incomplete and Insufficient Certifications

The new regulations clarify and define the process by which an employee may cure an incomplete or insufficient medical certification. A certification is incomplete if one or more applicable entries on the form have not been completed. A certification is insufficient if the certification form is completed, but the information provided is vague, ambiguous or nonresponsive.

The employer must advise an employee whenever it finds a certification to be incomplete or insufficient and must state in writing what other information must be provided. The employer must provide the employee with at least seven calendar days to cure the deficiency; but again, the employee must be allowed additional time if it is not practicable under the circumstances for the employee to resubmit the certification, despite his or her diligent, good-faith efforts.

Failure to Provide Certification

At the time the certification is requested, employers must notify employees of the anticipated consequences of failure to provide the certification. If an employee fails to provide a complete and sufficient certification despite the opportunity to cure, or if the employee fails to return any certification at all, the employer may deny the leave, unless there is sufficient reason for the delay in the case of foreseeable leave or, in the case of unforeseeable leave, it is not practicable for the employee to return a timely certification due to extenuating circumstances.

Authentication and Clarification

Subject to certain restrictions, the new regulations permit employers to make direct contact with the health care provider who submitted the certification, for purposes of authentication and clarification, after the employee has been given the opportunity to cure any deficiencies.

Employers may now make direct contact with the health care provider without obtaining the employee's permission for the contact and without using the employer's own health care provider to make the contact. However, if the employer does not use its own health care provider to make contact, it must use a human resources professional, a leave administrator or a management official. Under no circumstances may the employee's direct supervisor contact the health care provider.

Further, to protect the employee's privacy, the regulations require that the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA) must be satisfied when a HIPAA-covered health care provider shares an employee's individually-identifiable health information with an employer. If the employee refuses to provide the employer with authorization allowing the employer to obtain clarification and does not otherwise clarify the certification, the employer may deny the leave.

When the foregoing procedures are followed, an employer may obtain authentication of a certification by providing a copy of it to the health care provider and requesting verification that the certification was in fact completed or authorized by the health care provider who purportedly signed it. An employer may obtain clarification of a certification by contacting the health care provider and asking him or her to decipher the handwriting on the form or to explain the meaning of a response. In either case, an employer may not seek additional medical information beyond that required by the certification form.

As before, an employer who has reason to doubt the validity of a certification may require the employee to obtain a second opinion, at the employer's expense. The employer may designate the health care provider to furnish the second opinion, except that the health care provider may not be employed on a regular basis by the employer. If the second opinion differs from the first, the employer may require a third opinion from a health care provider jointly designated by the employer and employee, again at the employer's expense. The third opinion is final and binding.

Annual Medical Certifications

The new regulations provide that where the employee's need for leave due to a serious health condition lasts beyond a single leave year, the employer may require the employee to provide a new medical certification for each subsequent leave year.

The regulations treat such annual certifications as "new" certifications for which employers are entitled to seek second opinions as described above, as opposed to "recertifications" for which second opinions are not available. The addition of the right to require a new annual medical certification may prove helpful to employers managing cases of ongoing intermittent leave.

Going Forward

Employers must revise their FMLA policies, forms and practices in light of the new regulations. For assistance in doing so, please contact one of the lawyers in the Faegre & Benson employment counseling and compliance practice.

Further details are necessary for complete understanding of the subjects covered by this summary. For this reason, the specific advice of legal counsel is recommended before acting on any matter discussed in this article.