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FMLA Certification of Need for Leave

Employees taking leave under the Family and Medical Leave Act (FMLA) may be required to provide medical certification. This certification confirms the need for leave. But it must follow strict guidelines.

Common questions about medical certification include when it must be provided and what medical information employers can request. This guide provides answers to those inquiries.

The Family and Medical Leave Act

The FMLA gives eligible employees job-protected leave. You can put in a leave request for certain family and medical reasons. FMLA leave is unpaid leave. But you can combine the time off with paid leave, such as sick or vacation leave.

Eligible employees can take up to 12 workweeks of leave in a 12-month period for:

  • The birth of a child
  • The adoption or foster placement of a child
  • The employee's own serious health condition or serious injury that makes them unable to work
  • To care for a family member with a serious health condition (caregiver leave)
  • For urgent needs related to the employee's family member being on active duty with the Armed Forces or called to active duty (qualifying exigency)

Military caregiver leave also allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a servicemember with a serious injury or illness to take up to 26 workweeks of unpaid leave during a single 12-month period to provide care for the servicemember.

Intermittent leave. You have the right to take FMLA leave in one block of time. But you can also take intermittent leave, which is time off in short blocks of time. For example, some people on FMLA leave will work a reduced schedule of half days as they obtain medical treatment.

Continuation of health benefits. Your employer must continue to provide you with health benefits, including health insurance, while you are on leave. They must do so under the same terms as if you hadn't taken leave.

Employee eligibility requirements. You must have worked for your employer for at least 12 months. You must have performed 1,250 hours of service before taking leave.

Covered employers. Not all employers must comply with the FMLA. Covered employers include private employers with at least 50 employees. They must have had them for at least 20 workweeks in the current or last calendar year. Public employers, such as schools and local, state, and federal agencies, are also covered.

Enforcement. The U.S. Department of Labor (DOL) has authority over the FMLA. DOL's Wage and Hour Division (WHD) investigates alleged violations of the federal law.

When Is FMLA Certification Required?

Not all FMLA-qualifying leave requires medical certification. You don't have to provide medical certification for leave to take care of a newborn child or a child placed with you for adoption or foster care. But your employer is allowed to ask for documentation that proves the family relationship.

So, your employer can ask for medical certification if you need time off for:

  • Your own serious health condition
  • A family member's serious health condition
  • Military caregiver leave

If your employer requires medical certification, the request must be included in the Rights and Responsibilities Notice. The notice must be provided within five business days of your employer becoming aware of your need for FMLA leave.

Once the employer has asked, you have 15 calendar days to get the certification form completed and returned. You must make a good faith effort to return the certification in the allotted time. If you're diligent and good faith efforts aren't enough to meet the deadline, you're allowed more time to provide the certification.

If your employer requests medical certification, you must pay for the cost of the certification.

Your employer must inform you of the consequences of not providing complete and sufficient certification.

What Does Medical Certification Require?

The medical certification is a short form completed by a health care provider. It's provided to the employer to establish the worker's or family member's medical condition that qualifies for FMLA-protected leave.

The FMLA doesn't require a specific certification form. But the Department of Labor has developed forms for an employee's own serious health condition (WH-380-E) or to care for a family member's serious health condition (WH-380-F).

The healthcare provider selects from various categories of serious health conditions. They then provide enough medical facts to establish the health condition. The healthcare provider will also explain how long the medical condition has existed and how long it will last. The healthcare provider will also explain the extent to which the condition prevents you from working.

If your employer chooses to use their own forms, they may not ask for any information beyond that specified in the FMLA and its regulations.

If information is lacking or not filled in correctly, your employer may ask for clarification or a completely filled-out form. Your employer must specify in writing what information is lacking. You have the right to a reasonable amount of extra time (at least seven calendar days) to get this done.

Medical Recertification

In general, your employer can only request you to provide recertification no more than every 30 days and only when you are absent or have requested to be absent. But if your employer suspects fraud or you've asked for a leave extension, your employer can ask for recertification in less than 30 days.

The employer may ask for the same information in a recertification as was required in the original medical certification. But your employer may also provide the health care provider with a record of your absences. Your employer can ask if the health condition and need for leave are consistent with the leave you have taken.

The employee must pay the recertification cost. But if your employer asks for a second or third opinion in connection with the recertification, the employer will have to pay for it.

Privacy Concerns With Certifications

Certification of the need for FMLA leave doesn't mean that an employee's medical records become an open book for the employer. Employees may have concerns about privacy when it comes to their employer gathering information about their health condition. The law permits an employer to get enough information from a medical provider to establish that an employee or their family member has a serious medical need qualifying for FMLA leave.

The Labor Department states that employers should keep FMLA medical certifications and recertifications as confidential medical records. The DOL recommends keeping the records separate from personnel files. Keeping the medical information separate will ensure that it isn't seen by someone who may be reviewing your personnel file for other legitimate reasons.

Legal Limits on Employer Contact With Healthcare Providers

Finally, the law limits employers and direct supervisors in their contact with your healthcare provider. Employers can't ask for more than the form needs. They can't ask for an employee's medical records. Employers can call healthcare providers to check if a certification is real. They can also ask for clarification.

Your direct supervisor can't ask for this information. Your employer must use a human resources professional, administrator, etc., to get the information.

You'll probably have to provide written authorization to your healthcare provider agreeing to the release of your medical information.

Labor Department Resources

The Labor Department offers several publications on medical certification and the FMLA.

Need FMLA Certification for Leave? An Employment Lawyer Can Help

The specifics around FMLA can be confusing. You can go to your human resources department for more information. But if you're having trouble obtaining benefits, you may need to speak with an experienced employment law attorney in your area.

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