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THIS WEEK'S E-TIP: FMLA Medical Certification Explained
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^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ THIS WEEK'S E-TIP: FMLA Medical Certification Explained The FMLA's medical certification requirement allows you to assess whether employees legitimately have serious health conditions requiring the job-protected leave. Find out the dos and don'ts of getting this important information.
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THIS WEEK'S E-TIP: FMLA Medical Certification Explained Do you know when an employee's health problem meets the Family and Medical Leave Act (FMLA) criteria for a serious health condition? A survey by the Society for Human Resource Management (SHRM) showed that 60% of responding HR professionals had trouble determining whether an employee's illness met the FMLA's serious health condition definition. Further, 39% felt they had granted FMLA requests that may not have been legitimate. Fortunately, the FMLA gives employers a tool for determining when an employee's medical condition should be covered by the FMLA. The FMLA allows employers to require medical certification from a health care provider to support an employee's need for FMLA leave. In some cases, you may even be able to require a second or third opinion. Find out in the six questions and answers below when you can use medical certifications and what restrictions the FMLA places on them. (Click Here for 97-page report comparing FMLA, ADA, and Workers' Comp.) 1. Under what circumstances may you 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. 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. What information may be required 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 require the employee to provide: the name of the health care provider and type of medical practice; a statement regarding the part of the definition of serious health condition that applies to the patient's condition and the medical facts that support the certification; the approximate date the serious health condition began and its probable duration, including the probable duration of the patient's present incapacity (defined to mean inability to work, attend school, or perform other regular daily activities as a result of the serious health condition; treatment for it; or recovery from it); whether the employee will need to take leave intermittently or to work on a reduced schedule as a result of the serious health condition and, if so, the probable duration of the need for a reduced schedule; if the condition is pregnancy or a chronic condition, whether the patient presently is incapacitated and the likely duration and frequency of episodes of incapacity; if additional treatments will be required for the condition, an estimate of the probable number of the treatments; if the patient's incapacity will be intermittent or require a reduced schedule, an estimate of the probable number of and interval between the treatments, actual or estimated dates of treatment, if known, and any required recovery period; if the medical leave is required because of the employee's own condition, whether the employee is unable to perform work of any kind, is unable to perform any one or more of the essential functions of his position (and specifically which essential functions he is unable to perform), or must be absent from work for treatment; and if leave is required to care for a family member with a serious health condition, whether the patient requires assistance for basic medical or personal needs, safety, or transportation, or whether the employee's presence to provide psychological comfort would be beneficial to the patient, and the estimated time period. The DOL has published a medical certification form, Form WH-380, that you may use to obtain medical certification. (The Form WH-380 is available on the DOL Web site at http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf.) Although use of the form is optional, the regulations state that an employer generally may not require more information than what is asked for in the sample form. Because of this, you should consider using the sample form to ensure compliance. If you choose to prepare your own medical certification forms, you should consult with legal counsel because the medical certification requirements are so complex. (Click Here for 97-page report comparing FMLA, ADA, and Workers' Comp.) 3. What are the time frames within which you 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 two 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 two 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.
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4. What if the employee fails to provide medical certification? If the employee does not provide proper medical certification within the required time period, you may 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 from the health care provider but has been unable to get it. 5. Do you 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: -- Even though you may not request additional information directly from the employee's health care provider, if the employee gives permission, a health care provider representing the employer may contact the employee's provider to clarify the medical certification and verify its authenticity. -- Alternatively, you may require a second opinion from an independent health care provider that you select (but who does not regularly work for the employer). The employer is responsible for this expense. If the two opinions conflict, the employer may pay for a third and final binding medical opinion. 6. Can you 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. Specifically, for pregnancy and chronic or long-term conditions for which an employee is receiving continuing treatment, you may not request recertification more often than every 30 days, and only in connection with an absence of the employee. There are two exceptions to this rule. You may require more frequent recertifications if (a) circumstances described by the previous certification have changed significantly (such as the duration or frequency of the absence, the severity of the condition, or complications) or (b) you receive information casting doubt upon the employee's stated reason for the absence. If the minimum period of incapacity specified on the certification is more than 30 days, or if the leave is being taken on an intermittent or reduced schedule basis, you may not request recertification until the minimum period specified in the certification has passed, unless one of the circumstances described in (a) or (b), above, is present.
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Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find more information on the FMLA medical certification requirements in Leaves of Absence, Chapter 703, note 31. Not a subscriber? If you would like to order one of our policy chapters, go to: http://www.hrpolicyanswers.com. If you have any questions, please call us at 1-800-437-3735. We'll be happy to help you.
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