When Might an Employer Question FMLA Certification?

Allen Smith, J.D. By Allen Smith, J.D. March 10, 2022
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An FMLA handbook and stethoscope

​Family and Medical Leave Act (FMLA) certification of a serious health condition must be complete and sufficient, but sometimes it's neither. Employers rarely take a hard line but instead ask employees to provide more information to finish out the certification. Here are some tips on how to recognize something is wrong with the certification and give employees a chance to fix it.

Incomplete and Insufficient Certification

Employers typically respond to FMLA leave requests by providing the employee with the Notice of Eligibility and Rights & Responsibilities (Form WH-381) and a medical certification form. There is no requirement for the employer to request medical certification if the employer has enough information to know that an employee's absence is FMLA-qualifying. Employers should be consistent, though, in the policy and practice of requiring medical certifications from employees requesting FMLA leave.

[SHRM members-only how-to guide: How to Approve or Deny FMLA Leave]

An incomplete certification does not provide all the information requested, noted Shira Blank, an attorney with Epstein Becker Green in New York City. A certification is considered insufficient when the information on the FMLA form is unclear, vague or nonresponsive, she added.

The FMLA does not require the use of any specific certification form, but the Department of Labor revised template certification forms in 2020 that employers can use. "The newer version of the forms includes checkboxes and fields for dates, which has resulted in an increase in complete and sufficient forms being returned," said Abigail O'Connell, senior counsel with Sun Life Financial in Wellesley Hills, Mass.

The most common examples of insufficient information arise when dealing with intermittent FMLA leave requests if the medical provider fails to provide enough information confirming the expected use and duration of intermittent leave, said Tina Bengs, an attorney with Ogletree Deakins in Chicago.

For example, the medical provider may indicate that intermittent leave may be required for periodic flare-ups of symptoms but fail to state whether these flare-ups will occur once per month or six times per month, and whether each episode will last a few hours or a few days, she noted.

"One of the most common sufficiency issues that employers encounter in assessing FMLA medical certifications is the provider simply stating that the employee has a medical condition or in some instances providing a laundry list of medical conditions the employee has," Blank said. The provider also should explain why the employee requires leave under the FMLA or what the employee needs in order to return to work, she explained.

A diagnosis is not required to make a certification complete, O'Connell said, and FMLA leave may be granted despite the lack of diagnosis if the certification otherwise supports the need for leave. This might be the case if an employee is experiencing a medical condition requiring treatment and the worker is seeking diagnosis, she explained.

Invalid Certification

A certification may be invalid because the certification is not by a medical provider or someone qualified to opine on the employee's medical condition, Blank said.

"In other instances, the timing of the employee's request for FMLA leave may seem suspicious," she added. For example, the employee may have just requested FMLA leave for one reason and the request was denied, but the employee is now requesting leave for an entirely different reason.

Certification also might be invalid if the physician isn't a specialist, the nature of the condition and frequency or duration of the absences defy any common sense understanding of the condition, or there are objective facts that cause the employer to doubt the information in the certification, said Jeff Nowak, an attorney with Littler in Chicago.

Such facts might include reports that an employee is engaging in conduct that contradicts the need for leave, such as social media postings showing the employee on vacation while allegedly out on leave or the employee being seen engaging in physical activity inconsistent with information in a certification, said Joan Casciari, an attorney with Seyfarth in Chicago.

Other reasons for doubting a certification's validity include if it appears to be altered by the employee, said Emily Harbison, an attorney with Reed Smith in Houston.

FMLA Requirements

Employees must submit medical certifications within 15 days of the employer's request, unless there is sufficient explanation of a delay, which typically results in an extension, said Anne Marie Welch, an attorney with Clark Hill in Birmingham, Mich.

"If the employee submits the certification after the deadline provided or extended by the employer, the employer may deny FMLA protection for the period of the time elapsed between the deadline and the submission of the certification," she added. "If the employee never produces the certification, the leave is not FMLA leave."

If the certification is incomplete or insufficient, the employer will need to go back to the employee to obtain more information. "This can be frustrating for the employee, particularly if they do not understand why additional information is being requested or if it results in a delay in approving their request for FMLA leave or leave under the ADA [Americans with Disabilities Act], state [or] city law," Blank said.

Employers requesting additional information should be cautious to make sure they are homing in on the specific information they require, so they can avoid an FMLA retaliation claim or claims that they are interfering with an employee's ability to take FMLA leave, she added.

"An employer may require that the [employee's] need for leave for a serious health condition … be supported by a certification issued by a health care provider, regardless of if it's obvious," Harbison said. "Keep in mind, the analysis under the FMLA is different than under the ADA."

Deny Leave or Designate FMLA Leave?

If an employee fails to provide certification, the employer has two choices, Nowak noted: deny FMLA leave or designate the absence as FMLA leave. He prefers the latter option.

"For some employers, denying FMLA leave will not result in an unexcused absence because the employee simply can use accrued paid leave without any consequence under the employer's policy," he said. "For other employers, they simply want to start the FMLA clock running so that the employee exhausts FMLA leave as quickly as possible and returns to work."

He explained, "You can always ask for certification later if the employer later has reason to question the appropriateness of the leave or its duration."

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