YOU CAN INSIST ON MEDICAL DETAILS FROM AN EMPLOYEE’S DOC

By Mark F. Kluger and William H. Healey

Have you ever received one of those vague statements from an employee’s doctor on the FMLA’s Certification of Health Care Provider, disability form or a return to work note that says virtually nothing of substance? Well, a federal court has recently confirmed that under the FMLA, employers have significant latitude to insist that employees provide medical documentation of the explicit details of their health condition.

In the case, the employee provided an FMLA Certification from her Internist stating that she needed leave due to severe anxiety and was being treated by a Psychiatrist and Therapist. Instead of simply accepting that Certification, the HR department required the employee to submit a second Certification from her Psychiatrist more explicitly describing the need for leave. The FMLA regulations specifically provide employers that right. An employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” At the same time, HR also gave the employee a heads up that she would need to submit a fitness-for-duty certification from the Psychiatrist when she was ready to return to work.

The employee complied with both requirements. But at the end of the leave, the Psychiatrist’s return to work note simply stated that she was medically cleared to return. The employer again pushed back and told the employee that the Psychiatrist’s conclusory statement was not sufficient. The employer provided the employee’s job description to the Psychiatrist and requested a more explicit clearance. Ultimately, the employer accepted the following: “Having reviewed [the employee’s] job description and observed her demeanor in-person, it is my conclusion that [the employee] is medically cleared to return to work.” The employer kept the employee out of work for an additional six days before the employee provided the second fitness document.

Although the employee returned, shortly afterward she resigned and sued for, among other claims, interference with her FMLA rights due to HR’s insistence on the more detailed information. The court supported the employer’s actions, including keeping her out of work while awaiting the Psychiatrist’s second note.

Employers, as found in that case, can require clear and specific information from an employee’s medical professionals on the basis for a medical leave and on their ability to return to work and perform the specific essential functions of their job [yet another good reason to maintain up-to-date job descriptions]. The FMLA has very specific regulations on the fitness to return process which include the requirement to notify the employee in writing and in advance of the requirement to provide such documentation prior to returning. In fact, employers must include that information in the FMLA Designation Notice, which must be sent to the employee after an employer receives and accepts the Certification of Health Care Provider and designates that the leave as FMLA qualified.

The availability of such medical information is not limited to only situations in which the FMLA applies. The ADA also allows employers to make inquiries into an employee’s medical condition and even require an examination so long as the information sought is “job-related and consistent with business necessity.”

We can help navigate this difficult and complex area of the law and human resources’ practice.

One more important note: A post-Super Bowl hangover is not a “serious health conditions,” at least not under the FMLA or ADA. And, as to Smunday, did you catch Mark’s interview on 1010WINS?

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