A medical certification is a written document from a health care provider verifying that an employee’s leave is for a serious health condition. It is an objective tool that HR managers should use to determine whether to grant or deny leave requests under FMLA, the California Pregnancy Disability Leave Law, and the California Family Rights Act (CFRA).
When to Require Medical Certifications
Both the CFRA and the FMLA recognize that the employer has a right to obtain medical certification of the health reason for a leave request. However, the employer is not required to obtain this certification in order to still legally recognize and grant the time off as covered leave.
“If an employer – as most do – decides to use medical certifications, the employer must tell the employee of the certification requirement in writing the first time that a certification is required; and then, for any second or subsequent certifications the employer can orally tell the employee of the need for a subsequent certification.” Julie Davis explained in a recent CER webinar titled “FMLA/CFRA Certifications: How to Get What You Need to Designate Absences.” However, the best practice is always to have the communications in writing, and to include information about the consequence of not providing the certification (typically denial of the leave request).
When using medical certifications, the employer must apply this requirement consistently to avoid discrimination claims. As such, it is best to have a written policy on when certification is required and follow it; there should be no exceptions—this is why it is best to make all requests for certification in writing as evidence.
When requiring medical certifications, this information should be included with the eligibility notice sent to the employee. Be sure to ask for it within 5 business days of the employee giving notice of the need for leave. However, if you choose not to require advance certification, you may still request certification later if a question arises about the appropriateness of the leave or the leave duration. If you elect to only ask for certification because of a question surrounding the appropriateness of the leave, document why the question arose and apply the practice consistently.
Medical Certification Completion
Employees should complete and return the certification within 15 calendar days after the request is made. This time should be extended if it is not practicable to obtain the information in this timeframe, despite employee diligence and good faith efforts to obtain it. If you have not received it within the timeframe, inform the employee in writing of the failure to receive the certification in the 15-day timeframe, ask for the reason why it was not provided, inform the employee of the consequence of not receiving it, and give the employee a specific extension deadline. Document this in writing. In most instances, granting at least one extension makes sense if the employee responds that they are trying to get certification and have been unable to do so.
In order to be sufficient and complete, the medical certification must contain specific information. If the leave is for the employee or the employee’s family member’s serious health condition, then the following information is required:
- Name, address, phone and fax number of the health care provider giving treatment.
- Type of medical practice or specialty of the health care provider.
- Approximate date the serious health condition started and the probable duration.
- Description of the medical facts regarding the health condition of the employee (or patient who leave is requested to care for), supporting need for leave, e.g., symptoms, hospitalization, doctor visits, continued treatment regimen, or medical need for intermittent or reduced schedule.
In addition, when the leave is for an employee’s own serious health condition, the certification can ask for information sufficient to establish: the employee cannot perform the essential job functions, the nature of any work restrictions, and the likely duration of such incapacity.
Be careful, however, because “in California the diagnosis cannot be required or sought.” Davis advised. The employer can only get a description of medical facts, but not a diagnosis. Employers also cannot request any information about medical conditions unrelated to the leave request. To be on the safe side of both California and federal law, do not ask for information that is too detailed and goes beyond what is sufficient to justify the need for leave. Additionally, do not request any information that may lead to the disclosure of genetic information. It is advisable to include safe harbor language outlining what should not be stated in the certification completion.
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Attorney Julie M. Davis is a partner in the Orange County office of Carothers DiSante & Freudenberger LLP. She has extensive experience defending a variety of class action matters across various industries, including consumer, wage & hour, and other employment-related class actions.