When employees request time off under the Family and Medical Leave Act (FMLA), employers need to tread carefully. The FMLA can trip you up in various ways, including how to legally document and approve eligibility for leave. Many employers particularly struggle with what information they may ask for without inadvertently violating the employee’s rights.
Trust but verify
In simplest terms, you may request certification of the medical basis for the leave request. But it’s typically not a quick process. The FMLA requires that you ask for the certification within five business days of learning of an employee’s need to take leave. That request must be in writing and include an official “rights and responsibilities” notice so that everyone is on the same page legally. Employees, in turn, need to provide you with the medical certification within 15 calendar days. Technically they have a little grace period if they’ve made a good faith effort to meet the deadline and failed. However, they’re not entitled to leave between the time the deadline passed and the certification is received.
Gather required info
An acceptable list of requirements for medical certification includes: Contact information for the health care provider and type of medical practice or specialty, When the serious health condition began, How long it’s expected to last, If the employee is the patient, whether he or she is unable to work and the likely duration of the health issue, Whether the employee’s need for leave is continuous or intermittent, and Appropriate medical facts about the condition. That last requirement begs the question: What medical facts are you entitled to? Indeed, this is where an employer could get into trouble if it gets too nosy. First, keep in mind that you cannot share whatever medical information you receive with the employee’s direct supervisor unless, of course, that’s you. Your HR manager, assuming you have one, should have the information, but it shouldn’t be mingled with regular employee files. Appropriate medical facts may include information on doctor visits, patient symptoms and a diagnosis. The employee’s health care provider may disclose a diagnosis at his or her discretion, but the U.S. Department of Labor has stated that an “employer may not reject a complete and sufficient certification because it lacks a diagnosis.”
Don’t wing it
The privacy of an employee’s health care information isn’t an area where you want to “wing it.” Even the best employment relationship can go south because of an FMLA leave dispute and you could end up in court. Work with an attorney who has expertise in this field and ensure that your employees know the rules. Contact us for more information. © 2020