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Total Articles: 30

Can I Get Some Clarification on That Certification? Maybe Not … Differences Between FMLA and CFRA

Under the Family and Medical Leave Act (“FMLA”), an employer is permitted to contact an employee’s healthcare provider, with the employee’s permission, to clarify a medical certification submitted in support of the employee’s request for a leave of absence.

FMLA FAQ: Can a Chiropractor Certify FMLA Leave for the Chronic Bad Back? And Are There Limits?

Backs across America must collectively be giving out, as my clients’ questions about medical certification from chiropractors are on the increase.

Asking Enough But Not Too Much: Medical Certifications for Leaves of Absence Under the FMLA and CFRA

The FMLA and CFRA both permit an employer to require an employee requesting a leave of absence to provide a medical certification, but these laws differ with respect to the information and employer can request about the reasons for an employee’s requested leave.

Can an Employer Require That an Employee Submit FMLA Certification from a Specialist to Support the Need for FMLA Leave?

When it comes to FMLA medical certification, my clients have many complaints.

FMLA FAQ: Must an Employer Accept FMLA Medical Certification from an Online Health Care Provider? And What If It's an LCPC?

Q: Our employee is trying to support his need for FMLA leave with medical certification from an online health care provider. Is this valid under the FMLA? And What if It’s a Licensed Clinical Professional Counselor?

FMLA FAQ: What if the Doctor Refuses to Use the Employer's FMLA Medical Certification Form? And They Want to Charge a Fee for It?

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?

Can Employees Be Disciplined When They Exceed the Frequency or Duration on Their FMLA Medical Certification?

One of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees.

Employer Can Seek Second Opinion After Doctor Finds Employee Fit to Return From FMLA Leave

On a number of occasions, we have discussed whether an employer can keep an employee out on FMLA leave even though they want to return, or whether an employer can require an employee to undergo a full medical examination before returning from FMLA leave. This scenario often arises where the employer has concerns about whether the employee is mentally fit to return to work, although the concern is properly raised whenever there are legitimate reservations about whether the employee can perform the duties of the job.

Can an Employee Insist That the Employer Pay for FMLA Medical Certification?

Let's put our heads together on this one. You see, it appears as though far too many employees have bought into the notion that their employer is always responsible for the cost of obtaining medical certification to support an FMLA-related absence. Case in point: just last week, a client called me for help after one of her employees simply refused to return medical certification because she didn't want to foot the $50 bill quoted by her physician for completing the certification form. She firmly believed her employer should pick up the tab.

Conquering the FMLA Medical Certification Process: A Recap of our Webinar

Thanks to those who attended my webinar last week with Matt Morris on "Conquering the FMLA Medical Certification Process: Best Practices for Employers." If you missed the program, you can access the webinar and materials here.

Take 2: Does Annual FMLA Certification First Require an Employee's Absence?

The feedback from last week's blog post on annual FMLA certification came fast and furious. Most of it was complimentary (thank you!), but several of my fellow FMLA nerds raised an interesting issue. They noted that the FMLA regulation covering "annual" certifications does not specifically state that the certification in the new FMLA year must come in conjunction with an absence. So, they question whether an employer actually has to wait for the first absence in the new FMLA year before seeking new certification.

DOL Busts Employer for Requiring Annual Medical Certification without Leave Request

The DOL is on a roll, and employers can't be amused. Over the past few months, the Department of Labor seemingly has issued statement after statement after statement announcing settlements it has reached with various employers in conjunction with alleged FMLA violations. Heck, DOL now even has its own blog highlighting its recent FMLA enforcement. [Hey, where did they get that crazy idea!?!]

Is Your Employee Paying a Deception Service to Provide You a Fake Doctor's Note or FMLA Certification?

Have you ever suspected that your employee has given you an excuse too rehearsed or provided a doctor's note a bit too slick in support of their leave of absence? Don't be fooled: they actually might be paying for the excuse.

FMLA FAQ: How Long Can an Employer Rely on a Second or Third Opinion under the FMLA?

Q: We have become more aggressive on suspected cases of FMLA abuse and, as a result, we have sent a greater number of employees for second and third opinions after they turn in medical certification. Once we have received the second or third opinion, how long can we rely on it?

Employee's Lack of Diligence in Obtaining Timely Medical Certification Destroys Her FMLA Claim

As a management side attorney, I love when an employer prevails in an FMLA case. However, I'm doubly giddy when the case provides real, practical takeaways for employers that help them better administer FMLA leave. Yesterday was one of those giddier days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith effort to turn the certification in on time. In its decision, the court explained for employers the various ways the employee could have shown that she was attempting in good faith to return medical certification.

"No Soup for You!" If An Employee Doesn't Turn in Medical Certification, FMLA Leave is Not Protected

Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification?

The DOL's FMLA Forms Expired on December 31, 2011. Should Employers Still Use Them?

In a flurry of activity at the end of 2011, several employers contacted me to determine whether the DOL notice and certification forms still were valid, even though they contain an expiration date of December 31, 2011. In short, employers may continue to use the DOL's FMLA forms, although consider our suggestions below before using these standard DOL forms.

Invalid FMLA certification can form the basis of employment termination.

In order to support a valid claim of retaliation under the Family and Medical Leave Act (FMLA), an employee must demonstrate that the reason given for an adverse employment action was pretextual, and that the employee’s request for or use of FMLA leave was the actual basis of the action. The 6th U.S. Circuit Court of Appeals has held that an employer’s rejection of an invalid FMLA certification was a valid reason for termination, and that the employee’s inability to proffer evidence of an alternate explanation for the company’s actions led to the dismissal of her lawsuit. Coffman v. Ford Motor Company, 6th Cir., No. 10-3842, unpublished opinion, 11/22/11.

Employee Who Refuses to Provide Sufficient Medical Certification under FMLA is Lawfully Terminated

One the biggest FMLA headaches for employers is when an employee fails or refuses to provide information to cure insufficient or incomplete medical certification. When the employer does not have the information to determine whether an absence qualifies as FMLA leave, it is left with a true dilemma: Try and obtain permission to talk to the health care provider? Delay or deny the leave and face possible litigation? Or simply approve the leave and go on with your day (after all, it's easier to avoid the confrontation, right)?

FMLA FAQ - What if my employee's doctor refuses to use our form?

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?

2nd Update: GINA and certification forms

Following up on our initial post and previous update regarding the new Genetic Information Nondiscrimination Act regulations (which you may wish to read first), here is what we've learned:

Update: Does GINA really require you to change your certification form?

Earlier this afternoon I received a voice message from an attorney in the EEOC General Counsel's office, suggesting that our earlier post might have gotten things wrong when we said that employers should include the new GINA "safe harbor" language in their FMLA certification forms. So far we have only been able to exchange voice messages, but I will try to obtain further clarification from the EEOC and let you know what I learn. (And thanks to the folks at the EEOC for the call - we appreciate your guidance!)

Podcast No. 17: Recertification.

Your employee has requested leave due to a serious health condition - either his or her own, or to care for a family member. You've sent out the notices, received a medical certification, and designated an employee's leave as FMLA. However, as the weeks or months go by, you're not so sure that the employee still legitimately needs FMLA leave. What are your options? In this podcast, we discuss the ins and outs of recertification, including what it is, and when and how you can request it.

FMLA FAQ - When does the 15-day period for returning a certification start?

Q: I know that I have to allow employees at least 15 days to return a medical certification, but when does the 15-day clock start running?

FMLA FAQ - Can an employee fill out his own medical certification?

An employee seeking FMLA leave just turned in a medical certification form with handwriting that looks suspiciously like her own. If the employee filled out this form, do we have to accept it?

Employer should allow certification period to expire before taking adverse action based on employee's failure to provide FMLA medical certification.

The 6th U.S. Circuit Court of Appeals has held that an employer must wait until the expiration of the medical certification period in order to deny FMLA leave to an employee. Branham v. Gannett Satellite Information Network, Inc., 6th Cir., No. 09-6149, September 2, 2010.

Podcast No. 16: Can I Contact an Employee's Doctor Directly?

What can you do when you receive a medical certification from an employee, but you think it might be fraudulent, or you just don't understand what the doctor has written? In these instances, does the FMLA allow you to contact the employee's health care provider directly to inquire? In this podcast, we explain the circumstances under which an employer may authenticate or clarify medical certification - without violating the rules.

6th Circuit: Employee Can Proceed With FMLA Claim Despite "Negative Certification"

When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment. However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the "negative certification" may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.

Medical Certifications - Why, When and How?

The medical certification is perhaps the employer's most important tool for managing FMLA leave. Unfortunately, many employers simply don't use the certification process, or don't use it properly. In this podcast, we discuss why medical certifications are important, when and how to request them, and what to do when an employee fails to return a complete and sufficient certification within the alotted time.

Employee’s Alteration of Healthcare Provider’s Form May Invalidate FMLA Application.

The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of leave during a 12-month period under certain circumstances which include a “serious medical condition.” An employer is allowed, under the regulations associated with the FMLA, to require an employee to document his or her medical condition, and further may require the employee to submit certification of that condition from a health care provider.
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