A couple of clients have asked me recently whether a health care provider can use his/her own medical certification form or “doctor’s note” to support the employee’s need for FMLA leave, or can we require the HCP to use the employer’s form. Or what if the HCP charges a fee to complete the form? What do you do then? I offer feedback originally provided by my colleague, Bill Pokorny, when he was my partner in crime on this little blog, since his take on this issue is spot on. Here’s the question posed:
Q. We have requested a medical certification from an employee who is seeking FMLA leave. We have our own certification form, and gave the employee a copy. The employee came back with a form letter from the doctor’s office stating that they charge a fee for filling out FMLA certification forms, and a note from the doctor stating that the employee was injured and needed FMLA leave. Do we have to accept the note in lieu of our form?
A. Generally speaking, it doesn’t matter whether a medical certification is written on your preferred form or on the back of a bar napkin. So long as the document is signed by a health care provider, and is “complete” and “sufficient” in the sense that it provides the employer with all of the information needed to determine if the leave is covered by the FMLA, then the certification should be accepted. But that does not mean that you should unquestioningly accept a “doctor’s note” in place of a complete FMLA certification.
In the scenario above, the doctor’s note does not include all of the necessary information, such as the dates and expected duration of the employee’s leave. Here, we would recommend informing the employee in writing that it is his responsibility to obtain a complete and sufficient certification, and to pay any associated costs or fees. Give the employee a reasonable period of time in which to do this – at least 7 days, and more if they employee has a reasonable explanation for the delay (which is required under 29 CFR 825.305(c)).
If the employee fails or refuses to provide a proper certification (on your form or otherwise), you can deny the leave. However, a more detailed note or letter from the doctor might suffice, even if it is not on your preferred form. Exactly how much information is needed will depend upon the specific circumstances. Again, if you need more information to determine whether the FMLA applies, the appropriate course is to inform the employee in writing of the specific information needed to make the certification complete and sufficient.
But what if the certification actually was written on the back of a bar napkin? Given the size of most cocktail napkins, it is unlikely that the certification would be complete or sufficient. (That would probably require at least a dinner napkin.) Even if it were, we would strongly recommend contacting the health care provider to authenticate the certification, and perhaps seeking a second opinion. You think?
What if the Health Care Provider charges a fee for completing the medication certification form?
Charging a fee for completing the FMLA medical certification form is a rapidly growing practice among health care providers. In short, because the employee is responsible for providing the employer with complete and sufficient medical certification supporting the need for FMLA leave, the employee also is on the hook to pay the fee charged by the HCP. Not the employer.
In these situations, I find it helpful to refer the employee back to the Department of Labor’s Employee Guide to the FMLA — specifically, page 12, which very clearly states that the employee is responsible for any costs associated with completion of the form.
