FMLA certification can be tricky to administer. On one hand, it’s a fairly straightforward way to ensure that the employee is truly eligible to take FMLA leave. On the other hand, what are you to do when the employee repeatedly forgets to give you the certification form from his doctor, or fails to return it by the specified deadline? And what if the healthcare provider is the obstacle for getting the information you need? You’ve got to get that information somehow, but the law – particularly California law – doesn’t make it easy.
In a CER webinar titled “FMLA/CFRA Certifications: How to Get the Info You Need to Properly Designate Absences,” Jamie Rudman outlined what steps you should take and when you can contact the health care provider directly. (Hint: most of the time you shouldn’t!)
If the FMLA certification or recertification from the employee is incomplete or insufficient, the employer must first advise the employee that the FMLA certification is deficient, and state in writing what additional information is necessary to make it complete or sufficient. They must provide the employee with 7 calendar days to cure any deficiencies. In fact, the employee may have extra time to correct the certification if the employee notifies the employer within the 7-day period that she/he is unable to obtain the additional information despite diligent, good faith efforts.
FMLA Certification: When to Call the Doctor Yourself
“It’s tempting – very tempting – when you get deficient certification, to simply cut through the whole process of notifying the employee and just pick up the phone and call the employee’s doctor. Resist that temptation.” Rudman advised.
“Even if the certification is incomplete, then you are severely limited, as an employer, in when you can contact the health care provider. First, you have to wait for the employee – you have to give the employee notice . . . of how the certification is deficient and you have to give the employee that seven-day period to cure it.” However, if the certification or recertification is incomplete or insufficient, and employee has failed to cure the deficiency after having been given the opportunity to do so, and the employee fails to notify you during the seven days that they cannot fix the deficiency, then the employer actually may contact the health care provider. Even in this circumstance, however, you may only contact the health care provider for the very limited purposes of “clarification” and “authentication” of the certification.
FMLA Certification: What Can You Ask the Doctor?
Be careful when you do contact the health care provider. “If the certification or re-certification provided by an employee is complete and sufficient, you absolutely cannot request additional information from a health care provider.” Rudman warned.
Here’s what you can do:
- You may simply provide the health care provider with a copy of the certification and request verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document.
- You may ask for help understanding the handwriting on the certification, or understanding the meaning of a response.
Remember, though, you may not ask health care providers for additional information beyond that required by the certification form. Keep careful notes of your conversation.
FMLA Certification: Additional Considerations Before Dialing the Doctor Yourself
Before contacting a health care provider to clarify certification – as opposed to just authenticating it – the employer must have Health Insurance Portability and Accountability Act (HIPAA) authorization from the employee authorizing the employer to contact the employee’s health care provider or the health care provider of a covered family member. However, the employer cannot require the employee to provide the authorization, release or waiver.
If an employee chooses not to provide HIPAA authorization allowing the employer to clarify the certification with the health care provider, and the employee does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear.
Another consideration before calling the doctor (assuming you do have the HIPAA authorization), is who may contact employee’s health care provider? Not just anyone. In short, it needs to be:
- Another health care provider (such as a doctor who works for your organization)
- A human resources professional
- Leave administrator
- Another management official
Remember, there is a strict prohibition against letting the employee’s direct supervisor contact the health care provider – this is never allowed!
To register for a future webinar, visit CER webinars.
Jamie Rudman is an associate in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgijlaw.com). She has extensive experience representing management in labor and employment matters and has defended employers, managers and supervisors in state and federal lawsuits filed by current and former employees for wrongful termination, sexual harassment, discrimination, wage disputes and breach of contract.