When is medical certification required?
Certification of a serious health condition may be required in connection with leave taken to care for a sick family member or when the employee is unable to perform the functions of the employee's position. Certification may also be required when an employee is returning to work from a leave based on the employee's serious health condition, or when an employee is unable to return to work after using all available family and medical leave.
Who issues the certification? Certification should be issued by a health care provider.
The term "health care providers" is quite broad under the FMLA. Besides doctors, dentists, optometrists, chiropractors, etc., it also includes nurse practitioners and nurse-midwives, Christian Science practitioners, clinical social workers, and health care providers from whom an employer's group health plan's benefits manager would accept certification of the existence of a serious health condition to substantiate a claim for benefits.
The employee must provide the employer with a copy of the certification in a timely manner.
Can the employer contact the employee's physician who signed the certification with questions about the certification? No. An employer may not directly request additional information from the employee's health care provider. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification.
If an employee is on FMLA leave running concurrently with a workers' compensation absence, and the provisions of the workers' compensation statute permit the employer or the employer's representative to have direct contact with the employee's workers' compensation health care provider, the employer may follow the workers' compensation provisions.
What happens when an employer doubts the validity of certification? The employer has the right to require that the employee obtain the opinion of a second health care provider. The employer must pay for the second opinion. The employer has the right to choose the second health care provider.
Can a company doctor provide the second opinion? No. The second opinion cannot come from a health care provider that is employed on a regular basis by the employer.
What happens if the two opinions differ? The conflict would be resolved by a third health care provider. The employer must again pay for the extra opinion, but the health care provider is selected jointly by the employer and the employee. The third opinion is final and binding.
Can the employer require periodic recertification? Yes. The employer may require that the employee obtain subsequent recertification on a reasonable basis.
Can an employer request new certification when an employee seeks leave for the first time in a new 12-month leave year? Yes. An employer may request new medical certification from an employee who seeks leave under the FMLA for the first time in a new 12-month leave year. Because an employer may reinitiate the medical certification process, a second and third medical opinion could then be requested in any case where the employer has reason to doubt the validity of the new medical certification.
Can the employer require certification of ability to return to work? An employer may maintain a uniformly applied practice or policy of requiring each returning employee to provide certification from the employee's health care provider stating that the employee is able to resume work.