What to require on an FMLA certification (with California-specific considerations)

FMLA certification can serve multiple purposes. It not only helps employers determine whether a request for leave qualifies as FMLA-protected leave, but it also can be one of the most effective tools an employer can use to reduce FMLA abuse.

"When it comes to the employer's attention that the employee needs time off for what may be an FMLA-covered issue, the employer may . . . require the employee to provide a healthcare practitioner's certification of that employee's need for leave." Allen Kato explained in a recent CER webinar. This certification request requires the employee to provide certification from their healthcare professional within 15 days.

Using FMLA certification doesn't stop with this request. An employer has the right to require the certification to be complete and unambiguous. "As the employer, you do not need to accept either an incomplete or a vague certification." Kato confirmed.

Perhaps one of the best recent examples is the case of Woods v. DaimlerChrysler, which was an 8th Circuit case from 2005. In that case, the employee provided a note that said: "Mr. Woods has been advised to remain off of work pending further evaluation and treatment. He is to follow up with me in 1 week."

This was deemed to be insufficient certification by the court. The employer was entitled to require the employee to provide substantiation that the employee had an FMLA-covered, serious health condition requiring time off. In this case, the employer had asked for that, and the employee did not provide it. The absences were deemed unexcused, the employee was terminated, and the court upheld this action as lawful.

What to require on an FMLA certification

In the DaimlerChrysler case we saw an example of insufficient information, but what can an employer actually require on the FMLA certification?

An employer may require employee to provide certification stating that:

1. The employee has a serious health condition that requires time off, or that the employee's family member has a serious health condition and that employee is needed to care for the family member. California employers should remember that in California the employer may not require the employee or doctor to disclose the medical condition or diagnosis without prior consent.
   
   The Department of Labor (DOL) has a standard form (Form WH-380), and it includes a section that asks about the medical diagnosis. Employers in California can use it so long as doctor does not disclose the underlying diagnosis without the patient's consent. Alternatively, you could use the form but note that this section is not required and requires prior consent. When the certification form is turned in, if that section about the actual diagnosis is blank, that is fine, and employers should not contact the medical professional to get this information. This is not allowed under CFRA.
2. The employee unable to perform one or more essential functions of the job.
3. The timing and duration of the leave, i.e., the start date and anticipated end date. "The employer has no obligation to provide leave for an indefinite duration." Kato noted. If the certification does not have a clear duration, the employer can require it to be updated with that information. It needs an expected return date.

"If the certification meets these three elements – and even if you the employer doubt the validity of the certification – then you must accept the certification without further inquiry of that employee or the employee's doctor." Kato advised. "But that is not the end of the story. Because, if you do in fact have doubts about the validity of that employee doctor's certification and you want to proceed and process this and take it to the next step, the solution is to require the employee to undergo a medical examination by an employer-selected physician."

If the employer's doctor determines there is no need for FMLA leave, then employer-doctor and employee-doctor select third doctor to render a binding third opinion. This process of getting second and third opinions is only an option for when an employee has a serious health condition. The employer may not require a second opinion regarding an employee's need to care for a family member, even if the employer doubts that family member has a serious health condition that requires employee time off.

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.