Medical Certs—Necessary FMLA Evil

How can you know if your comp program is meeting organization goals? You have to maintain metrics, says consultant Terry Pasteris, CCP, GRP. But there are metrics, and then there are metrics.

Under the FMLA, employers may request medical certification of the need to take leave for the employee’s own serious health condition or the serious health condition of a covered family member.

You may utilize these DOL certification forms designed for this purpose (and why not use them, since you aren’t permitted to ask for any information not on those forms anyway?):

• Certification of Health Care Provider for Employee’s Serious Condition (WH-380-E)
• Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
• Certification of Serious Injury or Illness of Current Servicemember for Military Family Leave (Form WH-385)
• Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)

Timing

In most cases, requests for medical certification of the need for FMLA leave should be made immediately after the employee gives notice of the need for leave or within 5 business days thereafter, or, in the case of unforeseen leave, within 5 business days after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good-faith efforts, or unless the employer allows more than 15 calendar days to return the requested certification.

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Insufficient Certification

FMLA’s regulations require that an employer advise an employee whenever the employer finds a certification incomplete or insufficient, and the employer must state in writing what additional information is necessary to make the certification complete and sufficient.

The employer must advise the employee within 7 calendar days (unless not practicable under the particular circumstances despite the employee’s diligent, good-faith efforts) to fix any deficiency.

If the deficiencies specified by the employer are not fixed in the resubmitted certification, the employer may deny the FMLA leave.

Cert Completion Is the Employee’s Responsibility

It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification, if necessary. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the healthcare provider, and does not otherwise clarify the certification, the employer may deny the FMLA leave if the certification is unclear.

A certification form that is not returned to the employer is not considered incomplete or insufficient, but constitutes a failure to provide certification.

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HIPAA and GINA Concerns

During the medical certification process, be sure to follow requirements of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule when individually identifiable health information of an employee is shared with an employer by a HIPAA-covered healthcare provider.

Also be wary of the Genetic Information Nondiscrimination Act (GINA) that prohibits employers from requesting genetic information or discriminating against an employee or applicant on the basis of genetic information.
In tomorrow’s Advisor, when you can “clarify” or “authenticate” a certification, plus an introduction to the checklist-based HR audit guide that helps you find problems before the feds do.