THE LAW: The FMLA allows eligible employees to take up to 12 weeks of unpaid leave annually to recover from a serious health condition or to care for an immediate family member with a serious health condition.
To determine whether an employee or family member has a condition that meets the FMLA’s definition of “serious health condition,” employers should review the medical certification they receive from the employee’s health care provider.
WHAT’S NEW: In 2009, the Bush administration published updated FMLA regulations. One key section clarifies the rules regarding who may request additional information about an employee’s FMLA certification—and how it should be sought.
The good news: Those rules allow employers to directly contact an employee’s health care provider to seek clarification on an employee’s FMLA certification form.
HOW TO COMPLY: To maintain employee privacy, the rules clarify who can make such inquiries.
Who can inquire? An employee’s “direct supervisor” is prohibited from requesting certification details from the health care provider. Instead, it must be either a “health care provider, a human resources professional, a leave administrator (including third-party administrators), or a management official.”
What can you inquire about? Employers can’t ask health care providers for additional information beyond what the certification form contains. Health care providers are allowed, but not required, to provide a diagnosis of the patient’s condition.
In the past, medical certification requests were tightly constrained, permitting employers to collect information relevant only to the malady that created the need for the FMLA leave.
By contrast, employees seeking accommodation for a disability under the ADA had to enter an interactive process with the employer in which they were free to volunteer information.
Under the 2009 regulations, employers can use information gathered in ADA accommodation discussions or medical certification requests and workers’ compensation proceedings, as well as the FMLA certifications, to determine whether leave qualifies for FMLA.
If the employer can make the determination from information garnered during ADA accommodation discussions, there is no need to seek FMLA medical certification as well.
When can you inquire? If you find that the info on an employee’s medical certification is insufficient to make an FMLA determination, you must specify in writing what information is lacking and give the employee seven calendar days to cure the deficiency.
When can you request recertification? Employers can require employees to provide a new certification at the beginning of each FMLA year. This is true regardless of when the leave began.
Employers can request recertification every six months for employees with chronic conditions. If the employee’s condition changes within six months, the employer can request a recertification. Unlike initial certifications, employers may not request a second or third opinion on a recertification.
What's considered a 'serious health condition'?
Under the FMLA regulations, a “serious health condition” that qualifies for FMLA leave means an illness, injury impairment or physical or mental condition that involves at least one of the following:
Hospital care: Inpatient (overnight) care in a hospital, hospice or residential care facility, including any period of incapacity or treatment connected to inpatient care.
Absence plus treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves one of the following:
- Two or more visits to a health care provider. The first visit must occur within seven days of the first day of the incapacity, and both visits must take place within 30 days.
- A regimen of continuing treatment, with the first visit taking place within seven days of the onset of the incapacity.
Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care.
Chronic conditions requiring treatments: A chronic condition that extends over a period of time and requires periodic treatments. “Periodic visits” are defined as at least two visits to a health care provider per year. During that period, the incapacity may be episodic rather than continuous. Examples include asthma, epilepsy or diabetes.
Permanent/long-term conditions requiring supervision: A permanent or long-term incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of (but need not be receiving active treatment by) a health care provider. Examples: Alzheimer’s or the terminal stages of a disease.
Multiple treatments (nonchronic conditions): Any period of absence to recover from or receive multiple treatments for restorative surgery after an accident or injury, or for a condition that would probably result in a period of incapacity of more than three consecutive calendar days in the absence of medical treatment, such as cancer (chemotherapy, etc.), severe arthritis (physical therapy) and kidney disease (dialysis).
