All of FMLA administration is complex, but the area of medical certification in particular is very difficult to get a handle on. Not only must the employer protect its own interests and ensure that FMLA leave is not abused, the employer must also stay within the bounds of the many laws related to employee privacy rights and rights to take FMLA leave.

In a BLR webinar titled “FMLA Certification Help: How to Get Info When Employees and Doctors Are Uncooperative,” Francine Esposito, Esq., outlined information for employers explaining under what circumstances a certification form from a healthcare provider (HCP) can be required. A medical certification may be required during the initial certification process when leave is requested, during recertification for extensions or additional leave periods, during times when second or third opinions are requested from HCPs, and also when the employee returns to work.

Medical Certification, Privacy Issues
In any case, the employee must either furnish a complete and sufficient certification to support need for leave or furnish the HCP providing such certification with the necessary authorization to do so on his or her behalf. However, some doctors may be reluctant to offer any type of information—including medical certification—without authorization because they want to stay within the bounds of HIPAA laws.

Privacy can be tricky. The certification forms are interesting because they are not in and of themselves confidential. Employees may not want to give the form to their direct supervisor—and it’s probably a best practice to have someone in Human Resources handle these issues—but the case law is clear: There are no privacy rights on these certifications. The employee may be required to give them directly to his or her supervisor if that’s what the employer process says.

Beyond ensuring employee privacy when appropriate, employers have to be aware of the minutiae regarding medical certifications. Details such as the notice required to employees, the content that can be requested in the form, the timing of when the forms are due, and details around when recertification can be requested are all pertinent.

Employers must provide written notice of the requirement to submit a medical certification and the consequences of failing to do so. This may be done via the Notice of Eligibility and Rights and Responsibilities forms.

The required content of the HCP medical certification includes:

• HCP contact information and specialty.
  
• When the condition commenced and the probable duration.
  
• Medical facts sufficient to support the leave, such as the diagnosis, continuing treatment, medication, etc. (Be sure to check state laws and privacy laws to exclude unnecessary details that could be problematic.)
  
• Whether the employee can perform essential job functions, whether there are any restrictions, and the duration of any inability.
  
• Medical necessity for intermittent leave and expected frequency and duration of such leave.
  
• For leave to care for a family member, the form should include justification and the frequency and duration of the need to care for this person.

Obviously, this information may take some time to complete. The employer may request certification within 5 business days after the request or the start of the leave, or at later date if there is a reason to question the leave. The employee must submit the certification within 15 calendar days of such a request, unless this is not practicable despite diligent good-faith effort (e.g., doctor away).

Recertification for FMLA Leave
There are detailed obligations for the employer and employee for recertification for FMLA leave. The employer can request a recertification in these instances:

• If the original certification says the employee will be incapacitated for more than 30 days, the employer may ask for recertification after that period.
• Recertification can be requested in less than 30 days if there is a significant change in circumstances, if the employee asks for an extension, if the employer learns information that casts doubt on the validity of the original certification, or if it is time for the annual certification for a condition lasting more than 1 leave year.

Here are some other important details for employers to understand regarding recertifications:

• Like the original medical certification, the employee has at least 15 calendar days to provide it once requested.
• The employer may provide the HCP with the employee’s attendance record and ask if it is consistent with the serious health condition in question.
• Recertifications for the same condition during the same FMLA leave year may be requested orally.

Return-to-Work Certification From FMLA Leave
A final issue that employers need to understand regarding medical certifications is the return-to-work certification. Here are some guidelines:

• This certification addresses whether the employee can perform the essential functions of the job, based on conditions relating to leave only.
• The employer may require this for any medical leave if the employer uniformly requires it as a condition of post-FMLA reinstatement.
• The employer may require this up to once every 30 days for intermittent or reduced-schedule leave, if there is a reasonable belief of a significant risk of harm to the employee or to others related to the reason for the leave.
• The certification is at the employee’s expense, and as such, the employer cannot dictate the type of HCP.
• However, failure of the employee to provide this may result in a delay or denial of reinstatement.

For more information on this FMLA webinar or to register for a future webinar, visit http://catalog.blr.com/audio.