FMLA/CFRA certification is an important step in the FMLA/CFRA leave administration process. The medical certification is often the basis of whether a leave request is granted (assuming the employee is otherwise eligible) or denied. As such, it is important for employers to understand:
- What information can and cannot be requested on the FMLA/CFRA certification forms
- When the employer can contact the healthcare provider directly for clarification
- What the employer’s options are if the validity of the FMLA/CFRA certification is in question
FMLA/CFRA Certification Forms
Employers can ask for these pieces of information to be supplied on the FMLA/CFRA certification forms:
- Verification of an employee or family member’s serious health condition. Note, however, in California this excludes specific medical diagnoses, which are not to be disclosed.
- Date the condition began and expected duration of the condition.
- Confirmation of the medical need for intermittent or reduced schedule leave (if applicable).
To assist in this process, the Department of Labor (DOL) has created forms for employers. However, since these forms are not specific to the stricter California regulations regarding employee privacy, California employers should be careful if opting to use the federal forms. In fact, it is advisable to use the pre-2009 DOL form (WH-380) in California because it does not include questions that conflict with California’s privacy laws.
The form basically asks that the doctor verify that the employee has a serious health condition or that the family member does. It asks for the medical facts to support the need for leave. Even when using the pre-2009 forms, however, it is a good idea to advise the doctor to not include a medical diagnosis unless specifically authorized by the patient.
In a recent CER webinar, Mary Topliff explained that the DOL forms aren’t an employer’s only option. She noted: “You have the option, basically, to use the Department of Labor forms . . . Alternatively, you can create your own form – which is what I always recommend to HR folks, especially in California, because we have this overlay with California law and we have California Pregnancy Disability Leave and various and sundry other types of leave. If you’re just using the department of Labor form that really only covers the FMLA issues and not these other California law issues.”
FMLA/CFRA Certification Issues
Regardless of what form is used, another concern for employers is what action can be taken when the FMLA/CFRA certification form is returned incomplete. Under the FMLA, if the form is incomplete the employer should notify the employee in writing of the deficiency and provide an opportunity to cure it. Topliff told us that another option is “the employee can allow the employer to contact the healthcare provider directly if they so wish. Of course that’s something you’ll want to have authorization in writing for,” she advised.
“If the employee doesn’t either authorize the employer to communicate and get the information they need from the healthcare provider directly, and they don’t otherwise respond and provide clarification for you, then FMLA allows you, the employer, to actually deny the leave altogether.” Topliff continued. However, CFRA is silent on the issue of clarification by the employer. CFRA does not specifically provide the right to deny the leave altogether, so use caution.
A separate question is the concern of certification validity. Typically, if the certification form is complete then “there’s usually no further information that can or even should be obtained from the doctor.” Topliff explained. However, obtaining a second opinion is an option if there’s reason to doubt the validity of the certification, such as if fraud is suspected or if the employer has conflicting evidence about the situation. The FMLA permits second opinions for either family or an employee’s own medical condition, while CFRA only allows them for an employee’s medical issue.
If a second opinion is required, it will be at the employer’s expense and cannot be performed by a medical professional that is normally affiliated with the employer in any capacity. If there is a conflict between the original and the second opinion, then the employer can – again at the employer’s expense – require a third opinion, which will be final and binding.
It is not mandatory to get the third opinion in cases of conflict, but the employer risks liability (of failure to meet FMLA obligations) if a third opinion is not obtained when there is a conflict in the first two. This is because failing to obtain a third opinion and instead simply going with the healthcare provider who benefits the employer would result in a situation where there is a factual conflict. It leaves the question of which form is correct unanswered.
In summary, employers need to understand what information can and cannot be obtained on FMLA/CFRA certification forms and what steps can be taken if insufficient or invalid information is provided. Understanding the regulations is the first step.
The above information is excerpted from the CER webinar titled “Intermittent Leave in California: How to Correctly Apply FMLA/CFRA Rules and Stop Abuse.” To register for a future webinar, visit CER webinars.
Mary Topliff, Esq. founded the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance, while focusing on practical solutions to avoid costly legal issues. Topliff is also a published author and frequent speaker on legal issues impacting the workplace.