Introduction

The Family and Medical Leave Act (FMLA) provides eligible employees the right to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Health care providers are an important link in helping employees obtain the information their employers may need to provide the job protections afforded by the FMLA. Under the FMLA, health care providers include:

  • A doctor of medicine or osteopathy authorized to practice medicine or surgery in the state in which he or she practices,
  • A podiatrist, dentist, clinical psychologist, optometrist, or chiropractor -with limitations- authorized to practice in the state and performing within the scope of his or her practice,
  • A nurse practitioner, nurse-midwife, clinical social worker, or physician assistant authorized to practice in the state performing within the scope of his or her practice,
  • A Christian Science practitioner listed with the First Church of Christ, Scientist, in Boston, Massachusetts, or
  • Any health care provider from whom the employer or the employer's group health plan's benefits manager will accept a medical certification to substantiate a claim for benefits.

FMLA Basics

  • FMLA leave may be taken for a variety of reasons, including when the employee is unable to work because of his or her own serious health condition, to care for the employee's spouse, child or parent who has a serious health condition, or when the employee is a qualified "next of kin" to a military servicemember or veteran.
  • Eligible employees can take up to 12 workweeks of FMLA leave within the employer's leave year (e.g., calendar year, fiscal year, or a "rolling" 12-month period) or up to 26 workweeks for military caregiver leave.
  • FMLA leave may be taken all at once, or intermittently or on a reduced leave schedule, if there is a medical necessity.
  • An employer may require employees seeking FMLA leave due to a serious health condition (their own or a family member's) to submit a medical certification to verify the employee's need for time off.

Supporting FMLA Leave Requests

Your patient or your patient's family caregiver might request one or more of the following types of documentation to support an FMLA leave request:

  • Medical certification of whether your patient has a serious health condition and the need for FMLA leave (e.g., for treatment, recovery, or caregiving).
    • The employee is responsible for providing a complete and sufficient certification, or recertification, generally within 15 calendar days after the employer's request.
    • A new medical certification may be requested if the need for FMLA leave continues into a new leave year.
  • Second (or third) medical opinion if an employer has reason to doubt that a complete medical certification from a different health care provider is valid.
  • Recertification of your patient's serious health condition during the same leave year. An employee may need to obtain recertification, generally, no more often than every 30 days for a short-term condition, after six months for a longer-term condition, or sooner if, for example, the medical circumstances have changed significantly.
  • Fitness-for-duty certification showing that your patient is able to resume work. This request may ask you to specifically address a list of the employee's essential job functions. If reasonable safety concerns exist, an employer may require an employee to obtain a fitness-for-duty certification for intermittent or reduced schedule leave up to once every 30 days.

What a Certification Must Include

If your patient is seeking FMLA leave, a complete and sufficient certification includes:

  • Your contact information, including name, address, telephone number, fax number, and type of medical practice/specialty;
  • When the serious health condition began and how long it is expected to last;
  • Whether the employee is unable to work (i.e., unable to perform one or more essential job functions);
  • If unable to work, for how long;
  • A description of appropriate medical facts regarding the serious health condition;

If your patient has family seeking FMLA leave to care for them, a complete and sufficient certification includes:

  • Your contact information, including name, address, telephone number, fax number, and type of medical practice/specialty;
  • When the serious health condition began and how long it is expected to last;
  • A description of appropriate medical facts regarding the serious health condition;
  • Whether the family member needs care;
  • An estimate of the frequency and duration of the required care for the family member;

AND if the employee's need for leave is intermittent or on a reduced leave schedule:

  • An estimate of how much time the employee will need for each absence,
  • How often the employee will be absent, and
  • Information establishing the medical necessity for taking such intermittent or reduced schedule leave.

You also may, but are not required to, provide other appropriate medical facts, including diagnosis, symptoms, or any regimen of continuing treatment such as the use of specialized equipment.

As a health care provider, you are expected to provide only your best-informed medical judgment when estimating your patient's need for leave or care if the need is unpredictable. The FMLA does not require that you provide an exact schedule of your patient's health care needs when you are providing such an estimate.

Documentation Follow-up

You may be asked to clarify some of the information if it is vague, unclear, or non-responsive, or to provide any required information that was not provided.

Once an employer has received a complete and sufficient medical certification, an employer may not request additional information from you or ask the employee to do so. However, an employer might request that you:

  • Authenticate or clarify information received. The employer may contact you to authenticate or clarify the information provided.
    • You may be contacted by the employer's human resources staff, a leave administrator, or other staff.
    • Under the FMLA, the employee's direct supervisor may not contact you.
  • Verify leave needs. In certain recertification situations, an employer may provide you with a record of the employee's absences from work and ask you if the employee's pattern of absences is consistent with the serious health condition and need for leave.

Protecting Your Patient's Privacy

  • When an employer requires a medical certification, the certification does not need to provide the patient's diagnosis but does need to state appropriate medical facts that indicate the employee needs leave due to an FMLA-protected health condition.
  • The FMLA does not require employees to sign a release of their medical information. It is an employee's choice whether to sign a release, authorization, or waiver allowing the employer to communicate directly with you.
  • Under the FMLA, you only need to provide information about your patient's health as it relates to the employee's need for leave from work.
  • Some state or local laws may prohibit disclosure of private medical information about your patient's serious health condition, such as providing a diagnosis and/or course of treatment.
  • Do not include any information about genetic tests, genetic services, or the manifestation of disease or disorder in the employee's family members.

Certification Forms Your Patient Might Request

A certification may be provided in any format, such as on your letterhead, as long as it contains all the required information.

Is completing a specific form required?

  • The FMLA does not require the use of any specific certification form.
  • Some employers have developed their own forms and request employees use them, which is permissible if they meet all legal requirements.
  • The U.S. Department of Labor has free, optional-use forms that employers may choose to use to request certification. These forms, including instructions, can be found on WHD's website along with more information on using the forms.

What do you do with a completed certification?

  • You should provide the medical certification or information to the patient (the employee or the employee's family member). The employee provides the medical certification or information to the employer.
  • The employee or employee's family may also authorize you to provide the certification directly to the employer.
  • Do not send certifications or forms to the U.S. Department of Labor. Sending the form to the DOL may delay the employee's ability to take protected FMLA leave.

Who Pays the Cost of a Certification

The employee is responsible for paying for the cost of the certification or recertification. The employer is responsible for paying for second and third opinions, including any reasonable travel expenses for the employee or family member.