Tuesday, July 28, 2009

Do you know? Employers can communicate directly with employees’ health care providers for FMLA certifications

The recent changes to the FMLA’s regulations make it that much easier for employers to gather information about the medical need for an employee’s FMLA leave of absence. If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous, or non-responsive), an employer is now entitled to request additional information directly from the employee’s health care provider.

This ability, however, has certain key limitations:

  1. Before an employer can directly contact the health care provider, it must first advise the employee, in writing, of the deficiency in the certification and provide at least seven days for the employee to cure.

  2. Thereafter, an employer can directly contact an employee’s health care provider solely for purposes of clarification (to understand the handwriting on the medical certification or the meaning of a response) or authentication (verification that the health care provider completed or authorized the completion of the certification form).

  3. Contact, however, is limited to an employer’s own health care provider, a human resources professional, a leave administrator, or a management official.

  4. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

  5. Employers may not ask health care providers for additional information beyond that required by the FMLA certification form (including diagnostic information).

  6. While an employee must give his or her written authorization before the employer can make contact with the health care provider, the employee’s failure to consent entitles the employer to deny the FMLA request.

  7. The standard rules of confidentiality of employee medical information still apply.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.