Medical Certification Under FMLA/CFRA: How To Master This Complex Process and Stay Compliant Tuesday, June 15, 2010 Presented by the Employer Resource

Medical Certification Under FMLA/CFRA: How To Master This

Complex Process and Stay Compliant

Tuesday, June 15, 2010Presented by the Employer Resource Institute

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MEDICAL CERTIFICATION UNDER FMLA: HOW TO MASTER THIS COMPLEX PROCESS AND STAY COMPLIANT

Presented by Laura E. Innes, Esq.

Simpson, Garrity, Innes & Jacuzzi

601 Gateway Blvd., Ste 950South San Francisco, CA 94080

[email protected]

New FMLA Regulations

After more than two years of collecting data and drafting revisions, the U.S. Department of Labor (DOL) released the long-awaited final changes to regulations governing the Family and Medical Leave Act (FMLA). The final rule revisions took effect on Jan. 16, 2009 and aimed to help clarify employer and employee responsibilities under the law.

Medical Certification Under FMLA Employers may require employees to

provide medical certification issued by the employee’s health care provider supporting his/her need for leave: Due to employee’s own serious health

condition, or Due to employee’s need to care for a family

member with a serious health condition

Timing of Request for Medical Certification Under FMLA If employer requires medical certification, must

notify employee of requirement at the time employee requests leave or within five business days after the request, or within five business days after the start of the leave (if the leave was unforeseeable) Notice must notify employee of the consequences

for failing to provide medical certification Employee must provide requested certification

within 15 calendar days after request, unless not practicable despite employee’s diligent, good faith efforts

Timing of Request for Medical Certification Under CFRA There is not similar provision in CFRA or

its implementing regulations. This means the courts will impose a

“reasonableness” standard. The federal regulation may have created

the standard of “reasonableness.”

Content of Medical Certification

Under FMLA, a medical certification for an employee’s own serious health condition must contain the following information: The name, address, telephone

number, and fax number of the health care provider and type of medical practice/specialization;

The approximate date on which the serious health condition commenced;

Probable duration of serious health condition

Content of Medical Certification Statement or description of

appropriate medical facts regarding health condition for which FMLA leave is requested sufficient to support the need for leave E.g., symptoms, diagnosis,

hospitalization, doctor visits, or whether medication has been prescribed

Information sufficient to establish that the employee cannot perform the essential functions of the employee's job, the nature of any other work restrictions, and the likely duration of such inability to perform essential functions


If employee requests leave on intermittent or reduced schedule basis, medical certification must also include the following: Information sufficient to establish the medical necessity

for intermittent or reduced schedule leave; and If for planned medical treatment, estimate of the dates

and duration of treatment(s) and any periods of recovery

If for unforeseeable periods of incapacity, an estimate of the frequency and duration of episodes of incapacity

Content of Medical Certification Under FMLA, if leave is needed to care for a

family member with a serious health condition, the medical certification must include the following information: Name, address, telephone number, and fax number of

health care provider and type of medical practice/specialization

Approximate date on which serious health condition began, and probable duration

Statement or description of appropriate medical facts regarding health condition for which FMLA leave is requested sufficient to support the need for leave E.g., symptoms, diagnosis, hospitalization, doctor visits, etc.


Information sufficient to establish the family member is in need of care Includes both physical and

psychological care, and situations where employee needs to substitute for regular caregiver, make arrangements for changes in care, etc.

Estimate of frequency and duration of leave required to care for family member

Content of Medical Certification: CFRA Requirements Under the California Family Rights Act (CFRA), a

medical certification for an employee’s own serious health condition must contain the following information: The date, if known, on which the serious health

condition commenced The probable duration of the condition A statement that, due to the serious health

condition, the employee is unable to work at all or unable to perform one or more of the essential functions of his or her position

Employer may not ask for additional information beyond what is required by regulation

Content of Medical Certification: CFRA Requirements If intermittent or reduced schedule leave

is requested, medical certification must also include the following: Information sufficient to establish the medical

necessity of the intermittent or reduced schedule leave; and

If for planned medical treatment(s), an estimate of the dates and duration of the treatments and estimate of any period of recovery

If not for planned medical treatment(s), an estimate of the frequency and duration of the required leave

Content of Medical Certification: CFRA Requirements Under CFRA, medical

certification supporting need for leave to care for family member with serious health condition must include: Date, if known, on which

serious health condition began Probable duration of condition Estimate of the amount of time

which health care provider believes employee needs to provide care Providing care includes providing

psychological comfort, or arranging for third party care

Content of Medical Certification: FMLA vs. CFRA

Under CFRA, cannot require the employee to identify his/her serious health condition or the serious health condition of the family member on the medical certification Employee may choose to

identify the serious health condition

Vs. Under new FMLA

regulations, employers may request the diagnosis of the serious health condition

DOL Certification Forms-Caution! U.S. Department of Labor (DOL) has developed

optional medical certification forms (Form WH-380E and Form WH- 380F)

Optional DOL forms include question requesting health care provider to provide medical facts sufficient to support need for leave, including the diagnosis of the serious health condition Cannot require employees to identify serious

health condition under CFRA Therefore, it may not be a good idea to use these

federal forms where the leave falls under both statutes.

Requesting Second and Third Opinions: Employee’s Own Serious Health Condition If employer has reason to

doubt validity of medical certification, may require second opinion At employer’s expense Employer may designate

the health care provider, but selected health care provider cannot be employed on a regular basis by the employer

Same requirements under FMLA and CFRA

Requesting Second and Third Opinions: Employee’s Own Serious Health Condition If first and second

opinions differ, may require a third opinion At employer’s expense Employer and employee

choose health care provider

Third opinion is final and binding

Same requirements under FMLA and CFRA for second and third opinions

Requesting Second and Third Opinions: Family Member’s Serious Health Condition Under FMLA regulations, employers also

may require the employee to get second and third medical opinions regarding the serious health condition

Under CFRA regulations, employers may not require second and/or third medical opinions regarding serious health condition of employee’s family member If medical certification provided is complete,

may not request another opinion—even if employer doubts the validity of the certification

Requesting Second and Third Opinions: Additional FMLA Requirement

Employee or employee’s family member must authorize his/her health care provider to release relevant medical information to the health care provider providing the second and/or third opinion, if requested If no authorization provided, FMLA

leave may be denied No comparable CFRA regulation

Requesting Recertification Under FMLA Employer may request recertification

every 30 days and in connection with the employee’s absence

Exceptions: If initial medical certification provided for a

period of leave greater than 30 days, employer must wait until original leave period expires before requesting recertification (e.g., if duration of leave was 40 days on certification, must wait 40 days before requesting recertification)

Requesting Recertification Under FMLA May request recertification in

less than 30 days if: Employee requests an extension of

leave Circumstances described in the

original certification have changed significantly

E.g.: if duration and frequency of absences change, or nature or severity of illness changes

Employer receives information that casts doubt upon the employee’s stated reason for the absence or continuing validity of the certification

E.g.: while on leave to recuperate from knee surgery, employee seen playing in baseball league

Requesting Recertification Under FMLA

Employer may always request recertification after six months in connection with an employee absence (even if minimum duration of serious health condition is longer than six months)

Employee must provide the requested recertification within 15 calendar days, unless it is not practicable despite employee’s diligent, good faith efforts

Requesting Recertification Under FMLA No second or third opinion may be required on

recertification Recertification is at employee’s expense Employer may request same information

employee was required to provide on initial medical certification Note: As part of recertification, employer may

provide health care provider with record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with the absence pattern

Annual Medical Certification Under FMLA

If employee’s need for leave lasts beyond a single leave year, employer may require the employee to provide new medical certification each subsequent leave year Meaning, employer may

request second and third opinions, and clarification and authentication of certification

Requesting Recertification Under CFRA Under CFRA regulations,

employer may require recertification if: the initial period of leave

has expired, and the employee has

requested additional leave No provision permitting

employer to request new medical certification each subsequent leave year

When Medical Certification is Deficient: FMLA Requirements If certification or recertification is

incomplete or insufficient, employer must: Advise employee that certification is deficient, and

state in writing what additional information is necessary to make it complete or sufficient

Must provide employee with seven calendar days to cure any deficiencies Employee may have extra time to correct certification

if the employee notifies the employer within the seven day period that she/he is unable to obtain the additional information despite diligent, good faith efforts.

No comparable requirements under CFRA

Contacting Employee’s Health Care Provider Under FMLA

If certification or recertification provided by employee is complete and sufficient, employer may not request additional information from health care provider

If certification or recertification is incomplete or insufficient, and employee has failed to cure the deficiency after having been given the opportunity to do so, the employer may contact the health care provider for purposes of “clarification” and “authentication”


May provide health care provider with copy of the certification and request verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document

No additional medical information may be requested

If contacting health care provider to authenticate the certification:

Contacting Employee’s Health Care Provider Under FMLA If contacting the health care provider to

clarify the certification: May ask for help understanding the handwriting

on the certification, or understanding the meaning of a response

May not ask health care providers for additional information beyond that required by the certification form


Before contacting health care provider to clarify certification, employer must have Health Insurance Portability and Accountability Act ("HIPAA") authorization from employee authorizing employer to contact employee’s health care provider or health care provider of covered family member

Employer cannot require the employee to provide the authorization, release or waiver

If an employee chooses not to provide HIPAA authorization allowing employer to clarify the certification with the health care provider, and employee does not otherwise clarify the certification, employer may deny the taking of FMLA leave if the certification is unclear


Who may contact employee’s health care provider? Another health care provider Human resources professional Leave administrator Management official

The employee’s direct supervisor may never contact the health care provider!

No comparable provisions under CFRA

Using Information From Other Sources to Determine FMLA Entitlement

Workers Compensation: If FMLA leave runs concurrently with absence covered by workers’ compensation, and the leave provisions of workers compensation statute permit the employer or the employer's representative to request additional information from the employee's workers' compensation health care provider, the FMLA does not prevent the employer from following the workers' compensation provisions Information received under those provisions may be considered in

determining the employee's entitlement to FMLA-protected leave Paid Leave/Disability: An employer may request additional information

in accordance with a paid leave policy or disability plan that requires greater information to qualify for payments or benefits, provided that the employer informs the employee that the additional information only needs to be provided in connection with receipt of such payments or benefits Information received pursuant to such policy or plan may be

considered in determining the employee's entitlement to FMLA- protected leave

Employee’s failure to provide information required for receipt of such payments or benefits does not affect the employee's entitlement to take unpaid FMLA leave.

Using Information From Other Sources to Determine FMLA Entitlement

ADA: If an employee's serious health condition may also be a disability within the meaning of the Americans with Disabilities Act (ADA), the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA Any information received pursuant to these

procedures may be considered in determining the employee's entitlement to FMLA-protected leave.

Fitness for Duty Certification Under FMLA

Employer may have uniformly applied policy or practice that requires all similarly-situated employees who take leave for own serious health condition to obtain certification from health care provider that employee is able to resume work (“fitness for duty certification”) Employee has same

obligations in fitness for duty certification process as initial certification process (e.g., provide complete and sufficient certification, etc.)

Provided at time of reinstatement

Fitness for Duty Certification Under FMLA Employer must notify employee that leave had

been designated as FMLA leave within five business days of having sufficient information to make designation decision (absent extenuating circumstances)

If employer will require fitness for duty certification, must notify employee of requirement at same time (within five business days)

If fitness for duty certification requirement is included in Employee Handbook or other documents describing leave policies, employer may provide oral notice of requirement rather than written notice with the designation notice

Fitness for Duty Certification Under FMLA Employer may require the

certification to specifically address the employee’s ability to perform the essential functions of the employee’s position

If employer will require the certification to address employee’s ability to perform essential functions of position, employer must: Indicate it will be required in

designation notice, and Include list of essential functions

of the employee’s position

Fitness for Duty Certification Under FMLA If employer provided required notice of

fitness for duty certification requirement, employer not required to return employee to work until fitness for duty certification is received If employer provided notice of requirement,

employee who fails to submit fitness for duty certification or request additional FMLA leave is no longer entitled to reinstatement under FMLA

Fitness for Duty Certification Under FMLA

If fitness for duty certification is incomplete or insufficient, employer may contact health care provider for purposes of authentication and clarification Employer may not delay

employee’s return to work while contacting health care provider

Employer may not request second and/or third opinions

Fitness for Duty Certification Under FMLA Intermittent or Reduced Schedule leave

Employer may not require fitness for duty certification for each absence taken on an intermittent or reduced leave schedule

Employer may request a fitness for duty certification for such absences up to once every 30 days, if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave

Fitness for Duty Certification Under CFRA

Under CFRA regulations, employer may require that the employee obtain a release to “return-to-work” from his/her health care provider stating that he/she is able to resume work only if the employer has a uniformly applied practice or policy of requiring such releases from other employees returning to work after illness, injury or disability

CFRA regulations are silent about fitness for duty statements for intermittent medical leave – so the FMLA regulation provides the stricter standard.

When FMLA Leave May Be Denied for Failure to Provide Certification

If leave is foreseeable, and employee does not provide certification in timely manner, employer may deny FMLA coverage until the required certification is provided E.g., if an employee has 15 days to provide a

certification and provides the certification after 45 days, the employer can deny FMLA protections for the 30-day period following the expiration of the 15-day time period

If leave is unforeseeable, and employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided (absent extenuating circumstances) If the employee never produces the certification,

the leave is not FMLA leave.

When FMLA Leave May Be Denied for Failure to Provide Certification Recertification: If an employee fails to provide a

recertification within a reasonable time under the particular facts and circumstances, then the employer may deny continuation of the FMLA leave protections until the employee produces a sufficient recertification If the employee never produces the recertification, the

leave is not FMLA leave Fitness-for-duty certification: If employee fails to

timely provide the fitness for duty certification, the employer may delay restoration until the certification is provided Employee may be terminated if the employee fails to

provide either a fitness-for-duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded

Test Your Skills Employee takes ten weeks leave

for heart-related problems that necessitates the installation of a pace-maker. Employee’s work is strenuous, highly stressful work. You require a fitness-for-duty report for all employees holding the same positions. Employee brings a fitness for duty report in from his family doctor. You request a fitness-for-duty note from the employee’s cardiologist. Is this a proper request?

No. Mathews v. Fairview Health Servs., (D.Minn. 2003)

Test Your Skills

Employee claimed employer violated her CFRA rights. Employee requested two months leave to care for her son; she was not provided with medical certification form. Employee provided letter from doctor stating that son was severely hearing impaired, that he supported employee’s request for leave, and while condition was not a “serious illness,” son’s hearing impairment was a serious condition that could result in harm to son if not appropriately handled. Employer denied leave on basis son did not have serious health condition. Result?

Employee wins. It is health care provider, not employer, that determines whether employee is needed to provide care to family member. (Under CFRA, employer may not even request second or third medical opinion regarding family member’s condition). DFEH v. The Standard Register Company (1999) FEHC Dec. No. 00-04

Test Your Skills

Employee required to complete and return a request for CFRA leave, including medical certification, by Sept. 15, 2002. Employee failed to submit documentation by deadline; on Sept. 20, 2002, employee explained to employer that he did not receive mailed request until Sept. 18 and that his mother-in-law was dying of cancer and his mother was in a medically-induced coma. Employee explained that due to stress of circumstances, and time required to attend his mother’s medical appointments and his own, he had forgotten to complete the paperwork. Employee terminated two days after explaining to employer his failure to timely provide the paperwork. Can employee state a claim for interference with CFRA rights?

Yes. Employer may require employee to provide certification within 15 calendar days of request for certification, unless it is not practicable to do so despite employee’s good faith efforts. Hurley v. Pechiney Plastic Packaging, Inc., (N.D. Cal. 2006) 2006 U.S. Dist. LEXIS 15760

Let’s be Proactive:

Create a flow chart – concurrent leaves, levels of information (certification)

Create template letters – designation letter, address fitness for duty certification (for return), attach position description with essential functions, attach leave policy

Draft an integrated leave policy. A series of separate leave policies leaves everyone mystified.

Questions?


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Medical Certification Under FMLA/CFRA: How To Master This Complex Process and Stay Compliant Tuesday, June 15, 2010 Presented by the Employer Resource