There are a lot of new twists to FMLA thanks to the new military caregiver leave. In today’s Advisor, we tackle the quirks in certification requirements.
May we require certification for taking military caregiver leave?
Yes. When leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to obtain a certification completed by an authorized health care provider of the covered servicemember.
The Department of Labor has developed optional form (WH-385) for employees’ use in obtaining certification that meets military caregiver leave certification requirements. This optional form reflects certification requirements so as to permit the employee to furnish appropriate information to support his or her request for leave.
Say the military issues travel orders to an employee to immediately fly to Landstuhl Regional Medical Center in Germany to be at the bedside of a covered servicemember with a catastrophic injury. Does the employee have to provide a completed certification before flying to Germany?
No. Given the seriousness of the injuries or illnesses incurred by a servicemember whose family receives an “invitational travel order” (ITO) or “invitational travel authorization” (ITA), and the immediate need for the family member at the servicemember’s bedside, the regulations require an employer to accept an ITO or ITA as sufficient certification of a request for military caregiver leave during the time period specified in the ITO or ITA.
The regulations also permit an eligible employee who is a spouse, parent, son, daughter or next of kin of a covered servicemember to submit an ITO or ITA issued to another family member as sufficient certification for the duration of time specified in the ITO or ITA, even if the employee seeking leave is not the named recipient on the ITO or ITA.
However, if the covered servicemember’s need for care extends beyond the expiration date specified in the ITO or ITA, the regulations permit an employer to require an employee to provide certification for the remainder of the employee’s leave period.
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Are the certification procedures (timing, authentication, clarification, second and third opinions, recertification) the same for military caregiver leave and leave due to a serious health condition?
The same timing requirements for certification apply to all requests for FMLA leave, including those for military family leave. Thus, an employee must provide any requested certification to the employer within the time frame requested by the employer (which must allow at least 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.
The regulations also permit employers to authenticate and clarify medical certifications submitted to support a request for military caregiver leave using the procedures applicable to FMLA leave taken to care for a family member with a serious health condition.
However, employers are not permitted to require second or third opinions on military caregiver leave. Employers are also not permitted to require recertification for such leave.
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Are private health care providers, as well as military health care providers, permitted to complete a certification for military caregiver leave?
Yes. A private health care provider can complete certifications for military caregiver leave if the health care provider is either a DOD TRICARE network authorized private health care provider or a DOD non-network TRICARE authorized private health care provider. Department of Defense health care providers and Veterans Affairs health care providers can also complete a certification for military caregiver leave.
In tomorrow’s Advisor, more detailed FMLA questions, and an introduction to the “FMLA Bible.”