In a recent class one of the topics we covered was the Family and Medical Leave Act. We all agreed that one of the difficulties of dealing with the FMLA (among many) is getting additional information in order to make an informed decision on a requested leave due to the employee’s personal medical condition. So what can you ask about in the certification process?
The intersection of two laws
When you inquire about an employee’s medical condition you are not only dealing with the FMLA but you are also dealing with the Genetic Information Nondiscrimination Act (GINA). However, before you encounter GINA you have to understand the FMLA and what you can and cannot do. First, you can and should, require a medical certification from the employee’s healthcare provider that supports the reason for the employee’s request. I hope no one really goes on just the employee making the request. According to attorney Kristin A. LaRosa, of Pepper Hamilton LLP, “A complete and sufficient certification will include the date on which the condition giving rise to the need for leave began; a description of the employee’s medical condition, such as the symptoms, diagnosis, or any treatment regimen; information as to why the employee cannot perform essential job functions and the duration of the condition for which leave is sought.” This means you may need to supply to the physician a job description or at least a description of the essential job functions.
Secondly, if for some reason you doubt the completed form is real you can contact the physician and determine if the physician actually completed the form. You can also ask for clarification of the response if you did not understand it.
Thirdly, if you are still suspicious of the certification, you require the employee to go to another doctor of your choosing, and at your expense, to verify the information. You can even require a visit to a third doctor if there are differences in the first two certifications.
There is a final step you have to engage in when you are requesting this certification. Under GINA you have to let the doctor know that they are not to include any genetic information in their certification. This means you need to include Safe Harbor language in the documentation that is sent. This language says:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Your take away from this is that you do not have to be intimidated by the process. You can follow up on someone’s request, you can talk to the doctor if necessary and you can get it verified. You just have to make sure you include the GINA safe harbor language.
If you need some additional information you can find it here.
Artwork by the author