Can a Business Require a Doctor’s Excuse for FMLA?
Yes, a business can require a doctor’s excuse for FMLA, but the timing and scope of that requirement are governed by the Family and Medical Leave Act (FMLA) itself and related regulations, ensuring employee protections and preventing undue burden.
FMLA: A Brief Background
The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. These reasons include:
- The birth and care of a newborn child of an employee.
- The placement with the employee of a child for adoption or foster care.
- To care for an immediate family member (spouse, child, or parent) with a serious health condition.
- The employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job.
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”
The FMLA Certification Process: Documentation is Key
When an employee requests FMLA leave for their own serious health condition or to care for a family member with a serious health condition, an employer can require the employee to provide certification from a health care provider. This certification is essentially a doctor’s excuse for FMLA. The purpose of the certification is to verify the need for leave and provide information about the employee’s (or their family member’s) condition.
Permissible Employer Actions: What the Law Allows
Employers have specific rights regarding FMLA certification. They can:
- Require a complete and sufficient certification within 15 calendar days of the request (unless it’s impracticable to do so).
- Require the use of a standardized FMLA form for certification.
- Contact the health care provider for clarification and authentication of the certification (with the employee’s permission).
- Require a second or third opinion from a different health care provider (at the employer’s expense) if they doubt the validity of the initial certification.
- Require recertification on a periodic basis, depending on the nature and duration of the condition (typically no more often than every 30 days).
Limitations and Restrictions: Employer Responsibilities
While employers can ask for a doctor’s excuse for FMLA, the law imposes limitations. Employers cannot:
- Require more information than is specified in the FMLA regulations.
- Deny FMLA leave solely because the employee failed to provide the initial certification within 15 calendar days if the employee has made a good-faith effort to comply.
- Contact the health care provider directly for clarification without the employee’s permission.
- Undermine or intimidate the employee in seeking or providing certification.
Consequences of Non-Compliance: What’s at Stake
Failing to adhere to FMLA regulations regarding certification can expose employers to significant legal risk. Employees can file lawsuits alleging FMLA violations, potentially leading to:
- Reinstatement of the employee.
- Back pay and benefits.
- Liquidated damages (equal to the back pay and benefits).
- Attorneys’ fees and court costs.
The Importance of Clear Communication and Consistent Application
One of the best ways to avoid FMLA-related disputes is to have clear and consistent policies regarding certification. Communicate these policies effectively to employees and apply them fairly and consistently across the board. This demonstrates good faith and helps to minimize the risk of legal challenges.
Best Practices for Employers: Navigating the Certification Process
Here are some best practices for employers when requesting and handling FMLA certifications:
- Provide employees with the required FMLA notices and forms as soon as possible.
- Clearly explain the certification requirements and deadlines.
- Review certifications promptly and identify any deficiencies.
- Allow employees a reasonable opportunity to cure deficiencies in their certifications.
- Document all communications and decisions related to FMLA leave.
- Consult with legal counsel if you have questions or concerns about FMLA compliance.
Common Mistakes Employers Make: Avoiding FMLA Pitfalls
Several common mistakes can lead to FMLA violations. These include:
- Failing to provide required notices to employees.
- Denying FMLA leave based on insufficient or inaccurate information.
- Contacting health care providers without the employee’s permission.
- Demanding excessive or unnecessary documentation.
- Failing to accommodate reasonable requests for extensions of time.
FMLA Recertification
An employer can request recertification, which is another type of doctor’s excuse for FMLA, but it must be done according to strict guidelines to avoid interfering with an employee’s leave rights. Generally, employers can request recertification no more often than every 30 days. If the original certification specifies a minimum duration of the medical condition, the employer must wait until that period expires before requesting recertification. However, recertification can be requested more frequently if the employee requests an extension of leave, if circumstances change, or if the employer receives information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.
FMLA and the ADA: Intersection of Laws
It is crucial to understand the interaction between FMLA and the Americans with Disabilities Act (ADA). While FMLA provides leave entitlements, the ADA prohibits discrimination against qualified individuals with disabilities and requires employers to provide reasonable accommodations to enable them to perform the essential functions of their jobs. Sometimes, what begins as an FMLA leave request can also trigger ADA considerations. It’s important to assess each situation individually and ensure compliance with both laws.
FMLA and State Laws
Many states also have their own family and medical leave laws, which may provide greater benefits or protections than the FMLA. Employers must comply with both federal and state laws and provide employees with the most generous benefits allowed under either law. It’s important to consult with legal counsel familiar with both federal and state FMLA laws.
FAQs: Delving Deeper into FMLA Certification
Can an employer require a specific form for the doctor’s excuse?
Yes, an employer can require the use of a specific FMLA certification form. However, the form must comply with FMLA regulations and not request information beyond what is permissible under the Act. The form should be readily available to employees.
What happens if the doctor provides an incomplete certification?
If a certification is incomplete, the employer must notify the employee in writing what information is missing. The employee then has seven calendar days to provide the missing information. If the employee fails to do so, the employer may deny the leave.
Can an employer deny FMLA leave if the employee refuses to provide certification?
Yes, an employer can deny FMLA leave if the employee refuses to provide the required certification or fails to provide a sufficient certification after being given an opportunity to correct deficiencies.
Is it permissible to ask for more information than what is on the FMLA certification form?
No, an employer cannot request more information than is allowed on the FMLA certification form. This includes information about the employee’s or family member’s medical history that is not relevant to the need for leave.
What if the employee’s doctor charges a fee for completing the FMLA certification form?
The FMLA does not address whether a doctor can charge a fee for completing the form. The employer is not required to pay for this fee. This is typically the employee’s responsibility.
Can an employer require a doctor’s note every time an employee takes intermittent FMLA leave?
Generally, no. An employer cannot require a doctor’s note every time an employee takes intermittent FMLA leave if the initial certification covers the need for such leave. However, they can require recertification according to the guidelines previously mentioned.
Can an employer contact the employee’s doctor directly?
Yes, an employer can contact the employee’s doctor directly, but only with the employee’s permission. The purpose of the contact is to clarify and authenticate the certification. The employer must have the employee’s express written authorization.
What if the second and third medical opinions differ?
If the second and third medical opinions differ, the third opinion is binding. The employer must follow the findings of the third health care provider, who is jointly selected by the employer and employee.
Can an employer discipline an employee for taking FMLA leave if they suspect abuse?
An employer cannot discipline an employee for taking legitimate FMLA leave. However, if an employer has a reasonable suspicion that the employee is abusing FMLA leave, they can investigate the matter, provided they do so without discriminating against the employee for taking legitimate leave. The investigation must be based on objective evidence.
Does the FMLA apply to all employers?
No, the FMLA only applies to covered employers, which are generally those with 50 or more employees within a 75-mile radius.
Are there different rules for requesting a doctor’s excuse for FMLA for mental health issues?
The rules for requesting a doctor’s excuse for FMLA are the same regardless of whether the serious health condition is physical or mental. The same certification requirements apply. Employers should be mindful of privacy and confidentiality issues.
What if the employee is hesitant to provide medical information due to privacy concerns?
Employers should emphasize their commitment to maintaining the confidentiality of employee medical information. FMLA regulations require employers to keep medical information confidential and separate from other personnel records. Explain to the employee what information is needed, why, and how it will be protected.