Administering FMLA leave can be a complex process, especially when handling medical certification. FMLA absences should be designated as such when appropriate, but employers often have designation questions when dealing with specific employee circumstances. In a recent BLR webinar, Julie M. Davis outlined the medical certification process and explained the information an employer has the right to obtain when certifying the need for covered leave. Davis lent her expertise to us and was on hand to answer questions from webinar participants. For everyone’s benefit, here’s a recap of their questions, broken down by category:
FMLA and CFRA Leave Documents
Q. Where can I locate an FMLA eligibility notice form or a medical certification form? Are there samples of that and other relevant FMLA forms online or in a publication?
A. You can obtain samples through the government website for the FMLA. There will be both certification form samples and sample notification letters. However, there is no particular information – there’s no set form – for an eligibility letter that goes out.
If you’re going to use the federal medical certification forms in California, you need to make sure the GINA notice is put on them, and you also need to be careful because only federal forms from certain years are allowed in California because the federal forms have been read to allow the disclosure of a diagnosis, which is not permitted in California. In California, you can also go to the California Family Rights Act website.
Additionally, various third-parties – such as BLR – have publications with sample forms. Often third-party providers have user-friendly forms – they can be a great source. However, a word of caution: when using pre-printed forms, be sure to confirm they are compliant with your local laws.
Insufficient Medical Certification
Q. Is a medical certification form considered to be incomplete if the doctor wrote "call" on the "job functions unable to perform" line? If so, is it acceptable to follow this instruction and call the doctor or does the response have to be in writing?
A. If the healthcare provider just wrote "call" and did not provide any medical facts or an answer to the question at hand, that would be a basis to deem the medical certification form incomplete because it does not provide the facts necessary. If the employee has provided written authorization to the employer to call the healthcare provider to cure this defect, then doing so would be permitted as suggested. However, use caution: in having that call with the healthcare provider the scope could easily go beyond the permissible information. A safer alternative would be to require that the employee obtain the clarification on the employer’s behalf.
Q. We have an employee requesting leave who has provided a physician’s prescription pad with a note indicating that the employee is put on disability. Is this alone acceptable as a certification?
A. If the employee submitted it as a certification, you should treat it as such since it is information from a healthcare provider to support leave. The question then becomes: is a sufficient or complete medical certification? If that was the only information provided (that the employee was put on disability) – that would be insufficient to be a complete certification because it would not provide the medical facts to support the need for leave, nor the onset or anticipated duration of the leave.
In that instance, you would treat it as a certification, deem it to be an incomplete certification, and that would trigger the notification to the individual of the need to complete the certification. You would identify what additional information is needed from the healthcare provider. That said, using a particular form is not required. The key is that the healthcare provider provides the necessary information the employer is entitled to receive in order to make a determination of leave eligibility.
Q. [Follow-up question] If the prescription pad indicated the beginning and duration of the disability, would that suffice as certification? Or does the employer have the option or right to ask for more information?
A. That would likely still be deemed to be an incomplete certification because the employer is entitled to receive medical facts substantiating the need for leave. Merely stating that the employee is disabled, without further medical information, could be deemed insufficient medical facts. You could require additional medical facts to support the need for leave.
For instance, the question would arise – how does the disability require a need for time off? You would be able as an employer (assuming you had this practice and applied it to everyone consistently) to treat it as an incomplete certification and follow the incomplete certification procedure.
Q. Within how many days from receipt should we inform the employee that his or her medical certification is incomplete?
A. There are specific timeframes to do that. The guideline is essentially 7 calendar days from receipt. A best practice would be to notify the employee as soon as possible – as soon as you make the determination that the form is incomplete or insufficient. You don’t need to wait the full 7 days if you have made the determination before then.
The above information was excerpted from the webinar "FMLA/CFRA Certifications: How to Get What You Need to Designate Absences." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Julie M. Davis is a partner in the Orange County office of Carothers DiSante & Freudenberger LLP. She has extensive experience defending a variety of class action matters across various industries, including consumer, wage & hour, and other employment-related class actions.