Allowing employees to take FMLA leave is good for employees, it’s good for families, and, of course, it’s required by law. But what if you have an employee who takes FMLA leave when nothing seems to be wrong? For example, you could have an employee who reports that he is taking FMLA leave every time his request for a specific vacation day is turned down. Certainly, you don’t have to allow an employee to take the day off just because the employee has suddenly decided to say that it is FMLA leave, right? images

Right. Employers have a way to ensure that their employees’ leave is actually FMLA leave by requiring that the leave be supported by a certification issued by the employee’s (or his or her family member’s) health care provider.  The U.S. Department of Labor provides two optional certification forms: WH-380E (for the employee’s own health condition) and WH-380F (for the employee’s family member’s condition).

The certification can require the following information, as well as other information, according to 29 C.F.R. § 825.306:

(1) the name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization;

(2) the approximate date on which the serious health condition commenced, and its probable duration;

(3) a statement or description of appropriate medical facts regarding the patient’s health condition for which FMLA leave is requested;

(4) if the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of the employee’s job as well as the nature of any other work restrictions, and the likely duration of such inability; and,

(5) if the patient is a covered family member with a serious health condition, information sufficient to establish that the family member is in need of care and an estimate of the frequency and duration of the leave required to care for the family member.

Each time the employer requires certification, the employer must give notice to the employee about the requirement.  At the time that the employer requests certification, the employer must advise the employee of anticipated consequences of the employee’s failure to provide adequate certification. Namely, the employer may deny the taking of FMLA leave.

Generally, employers should make the request for the certification within five business days of the time that the employee gives notice of his or her need to take leave. In the case of unforeseen leave, the employer’s request for certification should come within five days after the leave commences. However, if the employer has reason to question the appropriateness of an employee’s leave or the duration of the leave, the employer may request certification at a later date.

After the employer requests certification, the employee has 15 days to provide the certification, unless circumstances make it impracticable to do so despite the employee’s diligent, good faith efforts. The employee has the responsibility of either furnishing a complete and sufficient certification or providing the health care provider with any necessary authorization needed for the health care provider to release a complete and sufficient certification to the employer.

An employer does not have to accept an incomplete or insufficient certification.  If the employee fails to provide a complete and sufficient certification, including by failing to complete one or more entries or by providing vague, ambiguous, or non-responsive information, the employer needs to advise the employee in writing what additional information is necessary.  The employee then has seven calendar days to cure the deficiency, unless that time frame is impracticable despite the employee’s diligent, good faith efforts.

Kaite Robidoux focuses her practice in the area of labor and employment law.
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