Questionable FMLA certification? Here’s How to Handle It

From Tim Gould at HR Morning:

Incomplete or unclear FMLA certifications – they’re among HR pros’ biggest pains in the butt. Here’s a quick refresher course on how to handle them.

You do have a number of options when you receive certification paperwork you feel doesn’t adequately document an employee’s serious medical condition.
The rules

There are essentially five problems an FMLA certification can have. It can either be:

• Incomplete — defined by the DOL as certification in which “one or more of the applicable entries on the form have not been completed”
• Insufficient — defined by the DOL as having information that is “vague, unclear or non-responsive”
• Inauthentic — when a manager questions if the employee’s healthcare provider actually completed and signed the document
• Unclear — when it’s difficult to understand a physician’s handwriting on the form or the meaning of his/her response, or
• Invalid — when an employer has a reason to doubt the physician’s authority or the legitimacy of the certification. 

Incomplete or insufficient 

When a certification is deemed incomplete or insufficient, the DOL requires the employer to give the employee a written notice stating what additional information the employee needs to provide to make the certification complete and sufficient. 

The employee must then be given at least an additional seven calendar days to return the certification. 

If the employee fails to provide an updated, complete and sufficient certification within the established time frame, the employer may deny the employee’s FMLA request. 

Inauthentic or unclear 

When a certification is deemed to be unclear or lacking authenticity, it’s time to completely take the matter out of the hands of the employee’s manager/supervisor. 

The DOL says at this point only an HR professional, a leave administrator, another healthcare provider or a management official can contact the employee’s healthcare provider to authenticate or clarify the certification.
Three things your company — or its appropriate representative (from the list above) — can ask the employee’s healthcare provider:

• If the information contained in the FMLA certification was completed or authorized by him or her
• Questions to clarify the handwriting on the form, and
• Questions to clarify the meaning of the provider’s response on the form.

Warning: The DOL explicitly says, “Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.” 

Invalid 

If an employer has a reason to doubt the validity of a worker’s FMLA certification, it may require the worker to obtain a second medical certification. 

The employer can select the healthcare provider that will complete the certification — as long as it isn’t a provider the company employs on a regular or routine basis. 

If the second opinion differs from the original certification, the employer can request a third opinion — but this time the provider must be selected by both the employee and the employer. The third opinion is final and must be the one used by the employer for the purposes of accepting or denying an employee’s FMLA leave request. 

The employer is also responsible for paying for the second and third opinions, as well as any travel expenses incurred by the employee, or his or her family members to obtain those opinions. 

In addition, while waiting for the opinions, the employee is provisionally entitled to FMLA leave.

Source: DOL’s Fact Sheet #28G.