Published Date: 03/17/2014
By John Gupton
Does the Family and Medical Leave Act (FMLA) allow an employer to contact an employee’s health care provider about his or her serious health condition?
If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification). Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.
Under the regulations, however, when contacting an employee’s health care provider for authentication or clarification of the medical certification, an employer may use a health care provider, a human resource professional, a leave administrator or a management official. But, the FMLA regulations make clear that in no case may the employee’s direct supervisor contact the employee’s health care provider.
Also, the FMLA regulations state that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. In order for an employee’s HIPAA-covered health care provider to provide an employer with health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer.
If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.
For more information, please contact a member of CAI's Advice & Resolution Team at 919‑878‑9222 or 336‑668‑7746.