What should an employer do when an FMLA certification form is received that is unclear? Perhaps it's filled out completely, but the handwriting is illegible in some places. Or perhaps it appears as though it may have been filled out by someone other than the person who signed it. What actions can be taken without violating HIPAA or other employee privacy rights?
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Let's start by making a clarification—when the validity is doubted, you can get second and third opinions. But that's not what we're dealing with here. In this case, we want to examine how to handle FMLA certifications that are likely valid, but simply need some clarification or need the healthcare provider to confirm their authenticity.
Employers have options to get more information if the original medical certification isn't completely clear, but stops short of being invalid or doubted—they can request clarification or authentication directly from the healthcare provider.
FMLA Certification: Getting Clarification and Authentication
"When an employee submits complete and sufficient certification from a healthcare provider, you cannot request additional information from the healthcare provider. But, you can seek clarification or authentication." Francine Esposito explained in a recent BLR webinar. What this means is that there is a line that cannot be crossed: clarification does not mean the employer can directly contact the healthcare provider and solicit extra details that were not originally provided.
What is clarification? Clarification means that you are contacting the healthcare provider to either understand their handwriting or understand the meaning of a response. But as we mentioned: be careful – you can't ask for information beyond what is required by the certification, only for clarification.
In fact, it's a best practice to get this clarification via the employee. The employer could ask the employee get the information from the doctor, rather than contacting the doctor directly.
If you do decide to contact the healthcare provider, he or she may require HIPAA consent before complying with your request. (HIPAA basically says that private health information cannot be freely shared without consent). And in such instances, employees must either provide their consent or get the information you require on their own. Otherwise, the leave may be denied.
Authentication, on the other hand, is less substantive than clarification. Authentication basically means confirming that the doctor the employee claims completed the form actually did so. You can send a copy of the form to the provider, for example, and ask for verification. Just like clarification requests, no additional medical information may be requested.
There are also clear guidelines on who can request clarification and authentication—who can contact the healthcare provider directly.
"It can be done by a healthcare professional that you have inside your organization, an HR professional, leave administrator, or any other management official, but not by the employee's own direct supervisor." Esposito explained. That person should not have medical details about the employee.
In the case of authentication, no employee or HIPAA consent is required. This is because you're not asking for more information, you're just checking to see if the documentation was filled out by the person it shows on the form.
For more information on getting clarification and authentication for FMLA certification forms, order the webinar recording of "FMLA Certifications: How to Use Medical Evidence to Properly Designate or Deny Leave and Curb Abuse." To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Francine Esposito has been a labor and employment practitioner for more than 20 years. As a partner with Day Pitney LLP, she regularly represents employers before various administrative agencies, at labor arbitrations, in employment-related litigation, and conducts harassment and other workplace investigations.