Sooner or later, you might have to take time off from work for a reason covered by the Family and Medical Leave Act (FMLA) (29 U.S.C. §§ 2601 and following). If you’re lucky, the time away will be spent bonding with a new child. But many people need FMLA-protected leave to deal with a family member’s serious illness or to recover from a health crisis of their own.
Whatever the reason, your employer might request that you provide medical information verifying that you are entitled to FMLA leave. Whether the employer’s request is lawful will depend on the specific situation.
The general rule is that an employee must provide enough information to put the employer on notice of the need for leave. This is accomplished through a medical certification from the treating healthcare provider, a process specifically authorized and regulated by the FMLA.
An employer’s right to information, however, is limited in both scope and frequency by the FMLA, and recent court decisions suggest that judges are unwilling to expand it.
What Is the FMLA?
The purpose of the FMLA is to help employees strike a work-life balance. The federal law is grounded in the idea that American workers should not have to choose between a successful career and attending to personal and family needs.
As a result, the FMLA allows an eligible employee who works for a covered employer 12 weeks off per 12-month time period in order to:
- recover from a serious health condition
- care for a family member with a serious illness
- bond with a new child
- address needs caused by a family member’s active military duty, or
- care for a family member seriously injured in active military duty.
Although FMLA leave is unpaid, your employer must continue paying for your health benefits, and in most cases must reinstate you to your former position after leave ends.
FMLA Notice and Paperwork Requirements
While the FMLA grants employees who take leave certain legally protected rights, the law also imposes notice requirements on employees so that employers can conduct their business with the least interruption possible.
If an employee needs FLMA leave for a foreseeable reason, such as childbirth, the employee must give the employer at least 30 days’ notice. When the need for leave is unforeseeable, the employee must inform the employer only as soon as it’s practicable. This relaxed standard would apply, for example, if the employee suffered a heart attack or was injured in a car accident.
The FMLA does not require workers to use specific language when giving notice. Employees must simply provide enough information to demonstrate that the reason for leave is covered by the FMLA. If the reason is unclear, the employer may request written proof in the form of a certification from the treating healthcare provider. The FMLA spells out what type of information the certification should include:
- the date the serious health condition began
- the probable duration of the health condition, and
- appropriate medical facts regarding the condition.
If the leave is for the employee’s own health condition, the certification must verify that the employee is unable to work. If the leave is required so that the employee can care for a family member, the certification should say so.
Employees can take FMLA leave for as long as a single 12-week stretch, or for intermittent time periods not exceeding 12 weeks over a 12-month period. Generally, if the leave is intermittent or based on a reduced work schedule, the medical certification should include:
- a statement of medical necessity, and
- the expected duration of the intermittent leave or reduced work schedule.
Recertification Under the FMLA
If the employer doubts the veracity of the initial certification, the FMLA allows the employer to attempt to obtain a second or third opinion. The employer can also request recertification from the same healthcare provider who issued the initial certification, but in most cases no more often than every 30 days. The 30-day limit does not apply when:
- the employee requests an extension of leave
- there’s been a significant change with the employee’s health, or
- the employer’s obtains information doubting the employee’s reasons for leave.
If the employee’s health condition is expected to last more than 30 days, the employer must wait longer than 30 days to request recertification.
Working with Your Employer
You should never be afraid of exercising your FMLA rights, but keep in mind that the law does require employees to schedule medical appointments in a way that does not adversely impact their employer’s business. While there’s nothing more important than your health or the well-being of a loved one, it’s always a good idea to work with your employer whenever possible to minimize disruption.
Do Doctors Have to Fill Out FMLA Paperwork?
Doctors have no legal obligation to complete FMLA certifications, although most doctors will do so for a fee. Prior to making an appointment, contact your doctor's office and ask about its policy regarding FMLA forms and any associated fees. If your doctor refuses to certify your FMLA leave, it might be necessary to find another doctor.
Why Can’t My Employer Require a Doctor’s Note?
Courts have consistently held that employers cannot institute policies requiring employees to provide doctors' notes after each FMLA absence. One of the most recent examples was the 9th U.S. Circuit Court of Appeals decision in Oak Harbor Freight Lines, Inc. v. Antti (2014 U.S. Dist. LEXIS 20203 (D. Or. 2014)).
In that case, the employer noticed that employees were taking intermittent FMLA leave disproportionately on Mondays, Fridays, and just before holidays. As a result, the employer implemented a policy requiring workers to provide a doctor’s note explaining each FMLA absence.
The court invalidated the employer’s policy, finding that the FMLA limits the scope of an employer’s medical inquiry to the certification and recertification process. The FMLA spells out what type of information the employer is entitled to and when the employer can request it. No other information gathering process is recognized by the FMLA.
The court concluded that requiring an employee to provide a doctor’s note for every absence was no different than requiring a formal medical certification for every absence, a result that is clearly contrary to the plain language of the FMLA.
Contact an Attorney
If your employer denies your lawful request for FMLA leave, or fires you during an FMLA stint, contact an employment law attorney to discuss how to enforce your rights.