A common complaint from retail employers is that employees requesting FMLA leave often submit Certifications from health care providers that are incomplete (one or more of the entries are blank) or insufficient (the information provided is vague, ambiguous, or non-responsive). Employers are not required to automatically grant a leave of absence upon receipt of a deficient Certification. Rather, there are several things an employer can do to ensure that it is granting leave for a qualifying reason and for an appropriate duration.
If the Certification is incomplete, vague, ambiguous, or non-responsive, employers should provide a written request to the employee detailing what additional information is necessary to make the Certification complete and sufficient and request that the employee provide this information within seven days to avoid denial of FMLA leave.
After seven days, if the employee does not correct the deficient Certification, but provides a voluntary HIPAA compliant authorization, the employer may contact the healthcare provider for purposes of clarification and authentication of the Certification. Under no circumstances, however, may the employee’s direct supervisor contact the employee’s healthcare provider and the employer may not ask health care providers for additional information beyond that required by the Certification.
So what can an employer ask a healthcare provider to authenticate or clarify on a Certification?
To authenticate a Certification, employers may provide the healthcare provider with a copy of the Certification and request verification that the information contained on the Certification form was completed and/or authorized by the healthcare provider who signed the document. This is particularly helpful when the employer is skeptical that a healthcare provider completed the Certification.
To clarify a Certification, employers may contact the healthcare provider to understand the handwriting on the Certification or to understand the meaning of a response.
If an employee does not provide an authorization and does not otherwise clarify the Certification, the FMLA leave may be denied if the Certification is unclear.
Don’t be afraid to request a second or third opinion
If the employer has reason to doubt the validity of a Certification, it may require the employee to obtain a second (or third) opinion at the employer’s expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits. If the Certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave need not be designated as FMLA leave.
