Medical certification is one of the most complex and confusing aspects for employers when administering leave under the Family and Medical Leave Act (FMLA). In this video, HR.BLR.com Senior Legal Editor Susan Schoenfeld provides a quick review of the FMLA’s medical certification rules and answers one of the most frequently asked questions on medical certification.

Hello. I’m Susan Schoenfeld, a Senior Legal Editor for BLR’s human resources and employment law publications and I’m here today to talk about medical certification under the Family and Medical Leave Act-or FMLA. We receive a number of FMLA medical certification questions through our Ask the Expert service. Here, we’ll provide a very quick review of the FMLA’s medical certification rules and answer one the most frequently asked questions on medical certification.

FMLA allows employers to request medical certification for the employee’s own serious health condition; or the serious health condition or serious illness or injury of a covered family member; or the serious health condition of a covered servicemember.

If an employer is going to require medical certifications, it is required to provide the employee with written notice of such a requirement, and the consequences of failing to provide requested medical certification. This notice may be given in the form of DOL’s Notice of Eligibility and Rights & Responsibilities (Form WH-381, Part B), or a similar document provided by the employer.

There are very specific rules regarding the timing of FMLA medical certification:In most cases, requests for medical certification of the need for FMLA leave should be made immediately after the employee gives notice of the need for leave or within 5 business days thereafter, or, in the case of unforeseen leave, within 5 business days after the leave commences.

The employee must provide the requested medical certification or recertification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts, or unless the employer allows more than 15 calendar days to return the requested certification.

An employer may utilize DOL certification forms designed for this purpose, or the employer may use its own form, so long as that form does not violate the regulatory requirements (e.g., require additional information beyond that required in the DOL’s forms).

Sounds simple, right? Well, judging by the number of questions we receive from BLR subscribers on this topic, medical certification under FMLA is far from simple. To illustrate some of the more common pitfalls of medical certification, we thought we’d share some real customer questions and our answers to them: This is the first in a short series of videos that answer some of the tough questions we received from HR managers.

Here, we’ll address a question that arises pretty frequently. What if the need for FMLA is so obvious that requiring medical certification seems unnecessary? Employers often ask what to do when they know or it is obvious that an employee is hospitalized or otherwise incapacitated, and obtaining the proper FMLA medical certification will just take too long.

The strict interpretation answer to this question is what you might expect. As with any employment practice, selective decisions as to when to require a medical certification and when to forgo requiring a medical certification are subject to challenge under applicable Equal Employment Opportunity (EEO) laws. It may be advisable to avoid all such claims simply by requiring a medical certification in all cases, even if the need for leave in some cases is self-evident or obtaining such leave is time consuming. Getting certification every time for every employee ensures that the employer’s leave practices will not be challenged as selective or discriminatory.

Remember – the employer can always conditionally approve FMLA leave, pending the receipt of medical certification. This way, employees who have an immediate need for leave are not denied leave or leave benefits (such as paid leave substitution) while waiting for their doctor’s to provide certification.

Now this answer assumes that the employee actually provides medical certification. But what about the all-to-common dilemma of the employee what refuses or fails to return medical certification? In the next video in this series, we’ll answer a recent question involving the scenario where an employee fails to return medical certification--or as I like to call it, the "no-Show" certification.

HR.BLR.com’s Ask the Expert service is an exclusive benefit of our subscribers. To learn more about becoming a subscriber, visit HR.BLR.com. Thanks.

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