Shira Blank, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in SHRM, in “When Might an Employer Question FMLA Certification?” by Allen Smith.
Following is an excerpt:
Family and Medical Leave Act (FMLA) certification of a serious health condition must be complete and sufficient, but sometimes it's neither. Employers rarely take a hard line but instead ask employees to provide more information to finish out the certification. Here are some tips on how to recognize something is wrong with the certification and give employees a chance to fix it.
Incomplete and Insufficient Certification
Employers typically respond to FMLA leave requests by providing the employee with the Notice of Eligibility and Rights & Responsibilities (Form WH-381) and a medical certification form. There is no requirement for the employer to request medical certification if the employer has enough information to know that an employee's absence is FMLA-qualifying. Employers should be consistent, though, in the policy and practice of requiring medical certifications from employees requesting FMLA leave.
An incomplete certification does not provide all the information requested, noted Shira Blank, an attorney with Epstein Becker Green in New York City. A certification is considered insufficient when the information on the FMLA form is unclear, vague or nonresponsive, she added. …
"One of the most common sufficiency issues that employers encounter in assessing FMLA medical certifications is the provider simply stating that the employee has a medical condition or in some instances providing a laundry list of medical conditions the employee has," Blank said. The provider also should explain why the employee requires leave under the FMLA or what the employee needs in order to return to work, she explained. …
Invalid Certification
A certification may be invalid because the certification is not by a medical provider or someone qualified to opine on the employee's medical condition, Blank said.
"In other instances, the timing of the employee's request for FMLA leave may seem suspicious," she added. For example, the employee may have just requested FMLA leave for one reason and the request was denied, but the employee is now requesting leave for an entirely different reason. …
FMLA Requirements …
If the certification is incomplete or insufficient, the employer will need to go back to the employee to obtain more information. "This can be frustrating for the employee, particularly if they do not understand why additional information is being requested or if it results in a delay in approving their request for FMLA leave or leave under the ADA [Americans with Disabilities Act], state [or] city law," Blank said.
Employers requesting additional information should be cautious to make sure they are homing in on the specific information that they require, so they can avoid an FMLA retaliation claim or claims
