Who can complete FMLA paperwork

FMLA Certification is a medical confirmation that is generally required for employees to take leave per the Family Medical Leave Act.8 min read

1. What Is FMLA Certification?
2. When Is FMLA Certification Required?
3. What Is Required for Medical Certification?
4. FMLA Certification and Privacy Concerns
5. Laws Limiting Employers
6. What Happens If an Employee Does Not Provide Certification?
7. Can an Employer Request a Second Opinion?
8. Non-Medical Leave Certifications
9. FMLA Certification and Training Programs

Updated October 20, 2020

What Is FMLA Certification?

FMLA certification is a medical confirmation that is generally required for employees to take leave per the Family Medical Leave Act. Generally, this is required in the case of employees or their direct family members sustaining a serious health condition that requires time off work for caregiving or recuperation.

When Is FMLA Certification Required?

Any employee taking FMLA leave may be required to show a certification from a medical professional stating that the leave is necessary. Employers are allowed to require or simply ask for this documentation any time FMLA leave is requested.

Employers should ask for the certification as soon as the leave is brought up. In some cases, employers can take up to five business days after the notice of leave to request the documentation. If employees know they are going to be requesting FMLA leave, it's in their best interest to get the FMLA certification as quickly as possible.

Once employers have requested this documentation, they are required to give employees 15 days to have the certification completed and returned.

In the case of unforeseen leave requests, such as when an employee gets in an accident or a sudden-onset illness surfaces, employers can request the certification up to five business days after the leave starts.

While the Department of Labor (DOL) offers certification forms for FMLA leave certification, employers are not required to use these forms. It is suggested that employees use the DOL forms, to ensure they are complying with all FMLA regulations. Requesting additional information above and beyond what is asked on the DOL forms is prohibited.

When certifying an employee's serious health condition, employers should use the WH-380-E form, while the WH-380-F form should be used to certify a family member's health concern.

Keep in mind that sometimes there are delays in getting the requested documentation back. Employers should be mindful that it is not only up to the employee. Cooperation from health care providers as well as other necessary third parties can delay the process. Employees who do not submit documentation in the requested time frame, because of no fault of their own, cannot be penalized.

While the recommendation is that employers should ask for FMLA certification documentation within a short time after the leave request is made, they can request this documentation at a later time. One of the most common reasons for this is if the employer has concerns about the necessity or appropriateness of the leave.

In certain cases, an employee taking FMLA leave may have a worsened condition or a longer recovery period than originally expected and specified in the documentation. When this happens, the employer can request a new certification to document and establish the new requirements.

Employers are prohibited from requesting certification more often than once every 30 days. There are exceptions to this, such as in the case of suspected fraud or misuse of the leave. Even if misuse is suspected, employers must wait a minimum of 30 days to request a new certification if the original document states the leave will last more than this time.

Additional causes for an early request of recertification before the 30-day period is completed include:

• Employee requests leave extension
• There is a significant change to the circumstances originally laid out
• Information is received by the employer that brings concerns about the certification's validity

In the case of intermittent leave of six months or more, an employer is allowed to request that the employee gets recertification every six months.

What Is Required for Medical Certification?

An FMLA medical certification is a fairly short form that must be filled out by a health care provider. This document is then given to the employer to help establish the medical condition and expected leave time for an employee suffering from a severe medical problem, or taking care of a family member suffering from the same.

In the medical certification, there are specific items of information that must be included:

• The date the condition started
• The probable or expected duration of the condition
• The ability of the employee to perform his or her normal and essential job functions
• How much leave is needed
• A statement on whether the requested leave is full time or intermittent

While filling out the form, the medical professional must select from a few categories of severe health conditions that qualify for the leave. They need to list the medical facts relevant to the problem to help establish that the employees or their family members are suffering from such a condition.

There are sections in the form that request information on how long the condition has lasted. In some cases, this is an on-going problem, while in other cases it is a new condition. In addition, the health care provider should state how long the condition is expected to last.

The form allows for the doctor to state how the condition prevents or impacts an employee's ability to execute a job. Any relevant information should be listed here.

Keep in mind that the form is considered incomplete if the doctor leaves out a section or does not fully fill in the form. If the information provided is ambiguous, vague, or otherwise non-responsive, the form is considered insufficient.

Frankly, employers do not have to accept insufficient and incomplete forms. The employer may request clarification or a completed form. When employers require this, they must submit the request to the employee in writing. In addition, when the request is made, the employee must be offered a reasonable time to receive and resubmit the form. A reasonable time is generally at least seven calendar days.

It is crucial that the employer let the employee know the potential consequences of not providing correct or adequate certification. One of these consequences may be the denial of the requested FMLA leave until the certification is completed adequately.

When submitting certification for FMLA leave, an employee's medical records and history do not become open and public knowledge for the employer. However, an employer is allowed to request additional information from the employee's medical provider once they have received the fully completed certification form.

FMLA Certification and Privacy Concerns

Many employees voice concerns about keeping their medical privacy during the FMLA certification process. Since the employer is getting detailed information about the employee's health condition, it is an understandable concern.

According to the law, employers have a right to receive enough medical facts or information from a doctor to prove that employees or their family members suffer from a medical condition that is covered by FMLA leave.

The certification forms offer specific serious health conditions from which the employee's doctor must choose. These conditions include:

• Hospital care
• Pregnancy
• Inpatient care (when the stated person has to stay overnight in a residential medical care facility, hospital, or hospice)
• Chronic conditions
• Permanent or long-term conditions that require multiple treatments or supervision
• Continuing treatment (when the stated person cannot perform normal daily activities or work for more than three full days consecutively and requires regular treatment)

Chronic serious health conditions are specified as conditions that:

• Continue over a long period of time
• Require periodic or regular visits to a health care provider for treatment
• In some cases, may not cause continued incapacity, but episodic incapacity

Laws Limiting Employers

There are specific laws and regulations in place about how an employee's direct supervisor or the employer's representative may contact the employee's health care provider. In addition, there are laws limiting the information that can be requested by the employer.

Employers are allowed to ask the doctor for verification of the information on the certificate to authenticate the document. They can also request clarification on stated information if the employer has trouble reading the handwriting or if they don't understand what a response means.

When requesting clarification, a human resource professional, a member of management, or an administrator other than the employee's direct supervisor must be used. It is suggested that the individual used to obtain the clarification does not have any involvement in the decision-making process.

If the employer needs to call the health care provider about the information listed in the FMLA certification, the employee must provide written authorization of the release of information.

Keep in mind that employers cannot ask for any information beyond that contained in the certification or what is required to decide on the leave. It is strictly prohibited for an employer to demand or request the employee's medical records.

Regulations on FMLA and medical information laws change regularly, so it's crucial that employers review FMLA practices and policies frequently. If employers wait to review their policies until they have received an FMLA request, they may find it is too late, and there is not enough time to get the proper notice requirements. To ensure that the company is compliant with FMLA, employers should work directly with a qualified attorney.

Employers are restricted from requiring or requesting genetic information for employees or their family members, in accordance with the Genetic Information Nondiscrimination Act of 2008 (GINA). This is explained in the certification forms. According to GINA, genetic information includes the employee and their family's medical history, whether the employee received or sought genetic services, the results of genetic testing, and genetic information of a fetus or embryo carried or held by the employee or family members.

While substance abuse can be considered by FMLA to be a serious health condition, FMLA leave can only be taken for treatment that is performed by a health care professional or where the medical professional referred the employee.

What Happens If an Employee Does Not Provide Certification?

Employers have the right to deny an employee FMLA leave if the certification is not provided. When employees do not provide the certification to their employer, they do not have the right to leave. In addition, employers do not have to let their employees know that a certification hasn't been received.

It is expected that employers are flexible when they feel that an employee is acting in good faith and diligently to receive the certification. Many times, getting the form back from the employee's medical professional can take longer than expected.

Can an Employer Request a Second Opinion?

In certain cases, employers may have reason to doubt that the certification is valid. In this case, they have the right to request that the employee receive a second opinion. Keep in mind that this second opinion must be at the employer's expense.

When requesting a second opinion, the employer can choose a health care provider that the employee must use. The health care professional chosen cannot be one that the company uses regularly.

When a second opinion establishes that the employee is not entitled to FMLA leave, the employee's leave should not be designated as FMLA. Instead, it can be treated as either unpaid or paid leave. If employees do not cooperate with the second opinion request, their leave can be denied.

In extreme circumstances, a third opinion can be requested and obtained by the employer. If a third opinion is requested, this opinion is final and binding, according to FMLA regulations.

Non-Medical Leave Certifications

If an employee is taking non-medical leave, such as leave covered under FMLA for military personnel taking a qualifying exigency, employers are allowed to require certification. In some cases, this military personnel leave does not have anything to do with a medical condition.

FMLA Certification and Training Programs

More employees are asserting and enforcing their rights to FMLA leave. This leave is being used more often than ever before. This makes it crucial that employers have training programs on FMLA certification and regulations.

Employers are responsible for determining if FMLA applies when an employee misses work.

Human resource professionals, department heads, and administrators who regularly deal with FMLA administration, as well as day-to-day issues with FMLA, should be encouraged to take an FMLA Training and Certification Program.

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