Originally posted December 2019

UPDATED September 10, 2020 to include COVID-19 guidance related to telemedicine and return to work testing policies released by the U.S. Department of Labor Wage and Hour Division (“DOL”).

Compliance Snapshot:

  • Although while not required, an employer is entitled under FMLA to request certification from a medical professional stating that the leave is necessary.
  • It is suggested that employees use the DOL FMLA certification forms (WH-380-E and WH-380-F) to ensure they are complying with all FMLA regulations.
  • Employers can request new certification to document and establish changes in leave requirements but are generally prohibited from requesting more often than once every 30 days.

What is FMLA Certification and When May an Employer Require It?

The FMLA allows an employer to require that a request for leave be supported by a certification issued by a health care provider of the eligible employee. An FMLA certification is a document or form that is completed by the employee and, as appropriate, a health care provider.  The certification will allow an employer to obtain information related to the FMLA leave request and the likely periods of absences. It also serves to verify that an employee (or the employee’s family member) has a serious health condition (or in the case of military family leave, the existence of facts to support the request for leave). It is suggested that employers use the DOL FMLA certification forms (WH-380-E and WH-380-F) to ensure they are complying with all FMLA regulations.

Employers must notify employees each time they require a certification,  include written FMLA Rights and Responsibilities Notice and advise the employee of the consequences in failing to provide sufficient certification. An employer may require a certification when an employee requests leave for the employee’s own serious health condition, serious health condition of the employee’s parent/spouse/child, and military leave. Except for a request of documentation to confirm family relationship, employers may NOT request certification for leave to bond with a newborn child or child placed for adoption or foster care.

Can an Employer Deny FMLA Leave if an Employee Does not Provide Certification?

An employee maintains the responsibility to provide the initial certification if the employer requests it and employers have the right to deny an employee FMLA leave if the required certification is not provided to the employer.

Can the Employer Contact the Employee’s Health Care Provider?

Provided the an employee has provided written authorization for release of information, employers are permitted to communicate with an employee’s physician for verification of the information provided by that physician in the FMLA certification document and may also request clarification on that information. It is important that when requesting information and clarification, someone other than the employee’s direct supervisor (such as human resources or a member of management) should be requesting the clarification. The Department of Labor has cautioned that under no circumstances may the employee’s direct supervisor contact he employee’s health care provider.

When Can the Employer Request Re-certification?

An employer may, under certain circumstances, request that an employee “re-certify” their serious health condition or that of their family member within the same leave year. When the circumstances described in an existing medical certification change significantly, such as the duration or frequency of absences, and employer may request re-certification to confirm the need for more FMLA designated leave. When an employee’s absences significantly exceeds the frequency estimated in the certification the employer should request re-certification and give the employee a reasonable opportunity to cure the deficiency.

The following includes updates to the DOL’s COVID-19 and FMLA Questions and Answers (“DOL FAQ”):

Will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?

Yes. Until December 31, 2020, the DOl will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies. (DOL FAQ #12)

Can an employer implement a new policy requiring everyone to take a COVID-19 test before they come to the office? Under the FMLA, can an employer require an employee to get a COVID-19 test under this policy?

The FMLA does not prohibit the employer’s testing requirement. While an employer must reinstate an employee to the same job or an equivalent position, the employee is not protected from actions that would have affected them if you were not on FMLA leave. For example, if a shift has been eliminated, or overtime has been decreased, the employee would not be entitled to return to work that shift or the original overtime hours. That principle also applies here, where an employer’s requirement for testing isn’t related to the employee having been out on FMLA leave but instead, all employees, regardless of whether they have taken any kind of leave, are required to be tested for COVID-19 before coming to the office. Employers should be aware that other laws may impose restrictions on the circumstances when your employer can require COVID-19 testing, and what types of tests are permitted.  (DOL FAQ #13)

The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog.

Lizet Ramirez – Lizet is a Client Compliance Manager for Sequoia One, where she works with our clients to optimize and streamline benefits compliance. In her free time, Lizet enjoys live music, travel, hiking and spa days.