Navigating the Family and Medical Leave Act (FMLA) medical certification process can be tricky for even the most seasoned HR professionals. Thankfully, most employees requesting leave for their own serious health condition legitimately need it and will provide the necessary documentation. Other employees, however, attempt to “work the system” to take what they consider to be a needed vacation, to work another job, or to avoid imminent discipline.
The following tips will assist you in your efforts to effectively obtain the medical documentation necessary to determine whether employees’ requested leave for their own serious health condition is justified, while at the same time avoiding actions that might be considered illegal interference or retaliation under the FMLA or other violations of applicable laws.
1. Provide job descriptions to health care providers
To justify leave, employees must submit documentation from a health care provider certifying that they suffer from a “serious health condition” as defined by the FMLA. When you provide certification and return-to-work forms to be completed by the employee’s health care provider, you should attach a job description. So often, employers don’t take advantage of this opportunity.
Providing a job description will enable the health care provider to make an educated assessment about the employee’s ability to perform essential job functions based on a detailed, accurate description of his responsibilities rather than on his potentially skewed or self-serving description. To be effective for this purpose, job descriptions should be up to date, describe tasks with specificity (including both physical and mental requirements), and distinguish between essential and marginal job functions.
2. Provide GINA safe-harbor language to health care providers
The Genetic Information Nondiscrimination Act (GINA) prohibits you from, among other actions, requesting employees’ genetic information. As most employers know, employees’ health care providers don’t always provide the information requested during the FMLA certification process. Sometimes they don’t provide enough information. Sometimes they provide more information than necessary, and in those cases, they may unwittingly disclose an employee’s genetic information, such as genetic testing or family medical history.
To avoid liability for improperly requesting genetic information in violation of GINA, you must provide the “safe harbor” language suggested by the Equal Employment Opportunity Commission (EEOC) whenever you request medical information about an employee, including during the FMLA certification process. That language will notify the health care provider of your desire not to receive genetic information and will insulate you from liability should the health care provider nonetheless provide it. (Such language need not be provided when certification is needed to document the serious health condition of an employee’s covered family member.)
3. Conspicuously specify certification due dates and provide reminders
You may deny leave and/or discipline employees for unauthorized leave when they don’t timely submit medical certification justifying their leave. Specifically, employees must submit the certification within 15 calendar days of your request unless it isn’t practicable despite a diligent, good-faith effort.
While some employers chase employees for the certification long after the 15 days, others immediately discharge without any contact with the employee. Neither action is necessarily prudent. Rather, you should conspicuously specify the due date on the certification form to notify the employee and/or health care provider of the applicable requirements. This will assist the employee during a difficult time when she may not be as diligent as usual or better enable you to hold an uncooperative employee accountable for failing to fulfill her obligation.
In addition, reminding an employee, either by telephone or letter, of an impending due date will have the same benefits. Not only will these actions help you in the timely receipt of a certification, but they will uncover difficulties the employee is having in obtaining a timely certification sooner rather than later.
HR Guide to Employment Law: including FMLA
4. Closely scrutinize completed certifications
Employers often just confirm that an employee has submitted a certification and place the certification in a file. That’s unfortunate since in many circumstances, certifications submitted by employees don’t justify their requested leave. Knowing what to look for, however, is key. You should carefully review a certification to determine whether it:
- was completed by an appropriate health care provider;
- is completely filled out;
- actually sets forth a serious health condition;
- clearly supports a need for leave in sufficient detail, including definite time frames;
- is internally consistent; and
- is free of anything that appears suspicious.
Identifying problems early allows you to assess and address them in a timely manner. Alternatively, you may have to address such problems after leave has mistakenly been approved and/or the situation has deteriorated.
5. Appropriately use available tools and get help if needed
You have several avenues of recourse when employees don’t submit complete and sufficient medical certification supporting their need for leave as required. Before denying leave, you can — and actually are obligated to — give employees an opportunity to have their health care providers cure specified deficiencies in their submitted certifications.
You can directly contact an employee’s health care provider to seek “authentication” of a certification to determine whether the health care provider actually completed it, or with the employee’s consent, you can seek clarification of vague answers in the certification. You also can require an employee to undergo a second-opinion evaluation by a health care provider of his choosing when you question the validity of a certification.
While the specifics of how and when such processes can be used are set forth in the FMLA regulations, these processes nonetheless can be confusing. Because they can be very effective when used appropriately, you should seek the assistance of qualified employment counsel, especially in cases of suspicious requests for leave.
Want to learn more about the FMLA certification process? You can view the webinar Mastering FMLA Certifications by Francine Esposito, a partner at Day Pitney LLP.