Medical certification rules are designed to help employers verify whether a requested leave of absence is covered under the FMLA/CFRA. But simply asking the employee to return the medical certification does not always answer that question. For example, what medical certification should employers require for serious health conditions that are incurable—and how often can recertifications be requested? What about when an employee submits insufficient medical certification?
In a recent CER webinar, Allen Kato lent his expertise to tackle these tough questions about medical certifications and more. Here–s a sample of the questions and answers.
Q. What if an employee is suffering from a non-treatable serious health condition such as fibromyalgia or epilepsy and the medical certification form does not provide an end date? The employee will be on an intermittent leave of absence for an indeterminate period of time—possibly forever.
A. This is a tough question. What happens there is that the employer can insist on a medical certification that notes a finite time frame, even though the condition may be permanent. At the end of that time, you can get a recertification. How this works in practice is that the employee will eventually exhaust his or her FMLA/CFRA leave entitlement; at that point, the employer must take into consideration whether the leave can be extended under the ADA or FEHA as a reasonable accommodation.
Q. What if the employee–s doctor continues to extend the employee–s leave? Would that be considered an indefinite leave since it is extended every 3 weeks?
A. If the doctor–s note says 3 weeks, that–s not indefinite. At the end of the 3-week period, the employee–s approved leave is exhausted. Then the employee comes back with another certification for 3 weeks—which is still a definite time frame. This can continue for a long time. Under FMLA/CFRA and disability laws, you only have to keep that going for the duration of the FMLA entitlement of 12 weeks plus any additional period of time that would be a reasonable accommodation that is not an undue hardship to the employer.
Q. Can an employer require an employee to resubmit a medical certification if the original medical certification that was submitted did not address whether the employee can perform one or more of the essential job functions? (This happened because the employee submitted the certification prior to the employer providing the list of essential functions to the medical provider).
A. The best practice would be to provide the job description and list of essential functions with the original certification form. However, in this situation it would be legal to preliminarily designate the absence as approved FMLA/CFRA leave, with the condition that the employee is required to go back to the doctor and provide the job description and essential functions so that the doctor can answer that question. It–s good practice to do that because it–s important to have the record be correct and to have properly completed certifications.
Q. Can an employer require an employee who submitted an insufficient medical certification – and who has already returned from leave – to resubmit a sufficient medical certification?
A. I–d say no, don–t do that—it–s too late. Once the individual has returned from leave, the process is done for all intents and purposes. If the employee needs additional time off later, then use that time to get the complete certification.
Q. What if an employee has a mental condition? What type of doctor–s note would or would not be sufficient?
A. I encourage the employer not to initiate questions about the nature of the condition or the diagnosis. If there–s something to suggest this individual needs time off and it–s for some type of condition that may be FMLA covered, the response should be to provide them the medical certification form and ask them to get their health care professional to complete it confirming that there is a serious health condition that requires time off.
If you doubt the validity of the certification, then you can have an employer-selected doctor conduct an additional examination. (In this situation you would have the latitude to have enough of a discussion to determine what type of specialist would be appropriate).
Q. We are a healthcare facility. One of an employee–s family members was seen by a doctor the employee works with. Do we still have to accept that medical certification even though we suspect that the doctor is helping their coworker?
A. It does come up occasionally that a doctor may seem to be giving a false certification. Unfortunately, as long as that individual is a healthcare professional as defined by law, if that person provides a false certification for a family member–s serious health condition there–s not much the employer can do. You–re bound by it. You could conduct an investigation if you truly suspect fraud. But with respect to that certification, there–s not an opportunity to contest it.
The above information is excerpted from the webinar “FMLA/CFRA Certifications: How to Properly Designate Absences and Stop Leave Abuse.” To register for a future webinar, visit CER webinars.
Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.