In yesterday’s Advisor, we offered guidance on FMLA certifications; today, we’ll cover when you can “clarify” or “authenticate” those certifications, and we’ll introduce the unique checklist-based audit system that lets you find problems before the feds and the lawyers do.
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Authentication and Clarification of Medical Certifications
Employers are entitled to authenticate or clarify information received on a medical certification form. It is important to note that the definitions of what constitutes permissible authentication and clarification are very limited.
"Authentication" means providing the healthcare provider with a copy of the medical certification and requesting verification that the information contained on the certification form was completed and/or authorized by the healthcare provider who signed the document. No additional medical information may be requested. No consent is required for authentication.
"Clarification" means contacting the employee’s healthcare provider in order to understand the handwriting or to understand the meaning of the responses contained within the certification. Employers may not ask healthcare providers for additional information beyond that required by the certification form. The employee’s healthcare provider may require the employee’s consent for such clarification, and the employee must provide such consent or FMLA leave may be denied.
An employer may contact the healthcare provider for purposes of clarification and authentication of the medical certification (whether an initial certification or a recertification) after the employer has given the employee an opportunity to fix any deficiencies.
To make such contact with the employee’s healthcare provider, the employer may only use a healthcare provider, a human resources professional, a leave administrator, or a management official. Under no circumstances may the employee’s direct supervisor contact the employee’s healthcare provider.
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Military Caregiver Leave
An employer may seek authentication and clarification of the medical certification from a healthcare provider (DOD, VA, TRICARE, or private doctor), or for an ITO or ITA (invitational travel order or invitational travel authorization) just as it would any other FMLA medical certification.
You May Follow ADA, Workers’ Compensation, and FMLA Procedures
Employers may follow procedures for requesting medical information under the ADA, paid leave, or workers’ compensation programs without violating the FMLA. Any information received under those laws or benefit programs may be used by employers in determining an employee’s entitlement to FMLA-protected leave.
You May Indicate Essential Functions
The FMLA rules provide that an employer has the option to provide a statement of the essential functions of the employee’s position for the healthcare provider to review. A sufficient medical certification must specify what functions of the employee’s position the employee is unable to perform so that the employer can determine whether the employee is unable to perform one or more essential functions of the position.
Think your managers and supervisors are confused by the FMLA? And ADA? And FLSA? And that’s just the basics: Experience suggests that the ways your managers and supervisors can cause trouble is just about endless. How do you know if they are following your policies?
There’s only one way to find out what sorts of shenanigans are going on—regular audits.
The rub is that for most HR managers, it’s hard to get started auditing–where do you begin?
BLR’s editors recommend a unique product called HR Audit Checklists®. Why are checklists so great? Because they’re completely impersonal, they force you to jump through all the necessary hoops one by one. They also ensure consistency in how operations are conducted. That’s vital in HR, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.
HR Audit Checklists compels thoroughness. For example, it contains checklists both on Preventing Sexual Harassment and on Handling Sexual Harassment Complaints. You’d likely never think of all the possible trouble areas without a checklist; but with it, just scan down the list, and instantly see where you might get tripped up.
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In fact, housed in the HR Audit Checklists binder are dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:
- Staffing and training (incorporating Equal Employment Opportunity Commission rulings in recruiting and hiring, including immigration issues);
- HR administration (including communications, handbook content, and recordkeeping);
- Health and safety (including OSHA responsibilities);
- Benefits and leave (including health cost containment, COBRA, FMLA, workers’ compensation, and several areas of leave);
- Compensation (payroll and the Fair Labor Standards Act); and
- Performance and termination (appraisals, discipline, and separation).
HR Audit Checklists is available to HR Daily Advisor readers for a no-cost, no-risk evaluation in your office for up to 30 days. Visit HR Audit Checklists,and we’ll be happy to arrange it.