The Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of job-protected unpaid leave for certain specified reasons, including to care for their own or a family member's serious health condition.
To avoid abuse of this provision, you as an employer are entitled to request a medical certification from the employee's physician; FMLA regulations outline the information that may be required as part of the certification and the process for obtaining it. For related guidance, see Family and Medical Leave Act (FMLA) and Health Insurance Insights.
What types of medical issues amount to a "serious health condition"?
The regulations require that the illness or injury involve either inpatient care (meaning an overnight stay) or continuing treatment by a health care provider that includes one or more of the following:
- Incapacity of more than three consecutive full days, together with treatment; the treatment must occur on two or more occasions within 30 days of the first day of incapacity (unless extenuating circumstances exist), or an initial treatment must result in a regimen of continuing treatment (for example, medication or physical therapy).
- Pregnancy or prenatal care.
- A chronic condition that requires periodic treatment and continues over an extended period of time (but may include conditions that are episodic rather than continuous, such as asthma or epilepsy).
- A permanent or long-term condition for which treatment might not be effective; the patient must be under continuing medical supervision, but need not be receiving active treatment (examples include Alzheimer's, stroke, or the terminal stages of a disease).
- Conditions requiring multiple treatments, such as restorative surgery following an accident, chemotherapy or radiation for cancer, physical therapy, or dialysis for kidney disease.
To verify the presence of a serious medical condition, you may require a medical certification from the employee's or family member's medical provider. Employers can use Department of Labor Form WH-380-E, "Certification of Health Care Provider for Employee's Serious Health Condition," or may devise their own form; if you use your own form, you cannot require the employee to provide more information than that requested on the model certification form.
Notify the employee that certification will be required either at the time leave is requested or within five business days of that date. If the leave was unforeseen, notice that certification will be required should be given within five business days after the leave has commenced. The employee then has 15 days to provide the certification.
If the certification is incomplete, vague, non-responsive, or ambiguous, you can request in writing that the employee correct the deficiency and specify what additional information is required to make the certification complete. The employee has seven days to correct the deficiency. You may also contact the medical provider directly for authentication or clarification of the information on the certification, but the individual from your organization who makes this contact cannot be the employee's direct supervisor.
If the employee fails to provide a sufficient medical certification you can deny the FMLA leave request; the employee should be advised of this potential consequence when you first request the certification. If the employee's need for leave lasts longer than a year, certification may be required on an annual basis. You also may require certification at a later date if you have reason to question the appropriateness of the leave or its duration. If the employee's medical condition may also qualify as a disability under the Americans with Disabilities Act (ADA), information obtained through ADA procedures may be used in the FMLA leave determination.
Though FMLA leave is an entitlement for qualifying employees, employers have tools to control the risk that this entitlement is abused. Make use of the procedures allowed to ensure that only truly qualifying employees in your organization go out on FMLA leave; for related employment law and insurance considerations see Insurance and Employment Law: ACA, Medical Cost Sharing, FMLA, Coats v. Dish Network, and Med Pay. If you need personalized help applying these procedures, talk to an agent.
Frequently Asked Questions
What conditions qualify as a serious health condition under FMLA?
Serious health conditions include inpatient care or continuing treatment by a health care provider, such as chronic conditions, pregnancy, or treatments like chemotherapy.
Can an employer require a medical certification for FMLA leave?
Yes; employers may request a medical certification and must allow 15 days for the employee to provide it after being notified.
What if the medical certification is incomplete or unclear?
The employer can request clarification in writing and give the employee seven days to correct the deficiency.
May an employer contact the medical provider directly?
Yes, for authentication or clarification, but the person making the contact cannot be the employee's direct supervisor.
Is FMLA leave the same as an ADA accommodation?
Not necessarily; a condition may qualify under both laws, and information from ADA procedures can be used in FMLA determinations when applicable.