When speaking to potential clients about possible Family and Medical Leave Act (FMLA) or disability discrimination claims, employees often state their belief that an employer is not permitted to ask questions about their medical condition or disability. As with most employment law questions, the answer is not as straightforward as we might like.
Under the FMLA regulations, once an employer receives notice that an employee may be eligible for FMLA leave, the employer is permitted to request a medical certification to confirm the employee's need for leave. The regulations are pretty detailed about what information the medical certification must include and the Department of Labor has medical certification forms. Since the FMLA applies to large (50-plus employees) and public employers, the employer typically has a Human Resources (HR) department or HR professional who knows to provide the medical certification form to an employee requesting leave.
For employees requesting leave for their own serous health condition or the serious health condition of a family member, information required includes: the contact information for the health care provider who is treating the employee for the FMLA serious health condition; the date when the condition began and how long it is expected to last; a description of the “medical facts” supporting the need for leave; and information to support a request for intermittent leave, if applicable. This is not an exhaustive list and the regulation can be found at 29 CFR 825.306.
Once a medical certification that meets these criteria is submitted, an employee's gut reaction that a follow-up interrogation by the employer would be inappropriate is relatively accurate. If the medical certification is complete, the employer really should go no further. If it is incomplete, however, the employer should give the employee an opportunity to fix any missing information. And, if clarification or authentication is still required, then the employer is permitted to reach out to the healthcare provider. But the terms “clarification” and “authentication” are quite literal and limited. Clarification means clarifying handwriting or the meaning of a particular term. It's not an invitation to interrogate the employee's doctor. Authentication means making sure the certification was actually completed by a health care provider and does not permit the request for additional medical information.
What if an employer has reason to doubt the validity of a medical certification? They are permitted to get second and even third opinions, at their own expense. During the pendency of these examinations, however, the employee is typically entitled to the benefits afforded by the FMLA (like the maintenance of group health benefits).
The FMLA often overlaps with the Americans with Disabilities Act since an employee's serious health condition may also constitute a disability under the ADA. The FMLA regulations are clear that an employer is still entitled to medical information permitted by the ADA when that law applies. Accordingly, some further questioning in the event that the disability impacts an employee's ability to perform their job functions might be appropriate when the ADA is implicated.
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