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Employment Resources


By December 1, 2011No Comments

The Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of job-protected unpaid leave for certain specified reasons, including to care for their own or a family member’s serious health condition. To avoid abuse of this provision, you as an employer are entitled to request a medical certification from the employee’s physician. FMLA regulations outline the information that may be required as part of the certification, and the process for obtaining it.

What types of medical issues amount to a “serious health condition” as contemplated by FMLA? The regulations require that the illness or injury involve either inpatient care (meaning an overnight stay), or continuing treatment by a health care provider that includes one or more of the following:

  1. Incapacity of more than three consecutive full days, together with treatment; the treatment must occur on two or more occasions within 30 days of the first day of incapacity (unless extenuating circumstances exist), or an initial treatment must result in a regimen of continuing treatment (for example, medication, physical therapy).
  2. Pregnancy or prenatal care.
  3. A chronic condition that requires periodic treatment and continues over an extended period of time (but may include conditions that are episodic rather than continuous, such as asthma or epilepsy).
  4. A permanent or long-term condition for which treatment might not be effective; the patient must be under continuing medical supervision, but need not be receiving active treatment (examples include Alzheimer’s, stroke, or the terminal stages of a disease).
  5. Conditions requiring multiple treatments, such as restorative surgery following an accident, chemotherapy/radiation for cancer, physical therapy or dialysis for kidney disease.

To verify the presence of a serious medical condition, you may require a medical certification from the employee’s or family member’s medical provider. Employers can use Department of Labor Form WH-380-E, “Certification of Health Care Provider for Employee’s Serious Health Condition,” or may devise their own form, but in that case cannot require the employee to provide more information than that requested on the model certification form. You should notify the employee that certification of the medical condition will be required, either at the time leave is requested or within five business days of that date. If the leave was unforeseen, notice that certification will be required should be given within five business days after the leave has commenced. The employee then has 15 days to provide the certification.

If the certification is incomplete, vague, non-responsive or ambiguous, you can request in writing that the employee correct the deficiency, specifying what additional information is required to make the certification complete. The employee has seven days to correct the deficiency. You may also contact the medical provider directly for authentication or clarification of the information on the certification, but the individual from your organization who makes this contact cannot be the employee’s direct supervisor.

If the employee fails to provide a sufficient medical certification you can deny the FMLA leave request. The employee should be advised of this potential consequence at the time you first request the certification. If the employee’s need for leave lasts longer than a year, certification may be required on an annual basis. You also may require certification at a later date if you have reason to question the appropriateness of the leave, or its duration. If the employee’s medical condition can also be a disability within the definition of the Americans with Disabilities Act (ADA), information obtained through ADA procedures may be used in the FMLA leave determination.

Though FMLA leave is an entitlement for qualifying employees, employers have tools to control the risk that this entitlement is abused. Make use of the procedures allowed to ensure that only truly qualifying employees in your organization go out on FMLA leave.