Alexis, who offered his intermittent leave tips during the recent Advanced Employment Issues Symposium in Las Vegas, is with the Kinaga Law Firm in Los Angeles.
The certification process is set up to allow you to get the facts that establish the medical necessity or qualifying exigency that qualify employees for leave. If you doubt the validity of the certification, there are four tools available to you, says Alexis.
Incomplete Certification Follow-up
If you find that the certification document is incomplete, you may go back to the employee and tell the employee to go back to the medical practitioner to complete the form. You must give the employee a reasonable amount of time to accomplish this.
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Certification Clarification
If something on the certification form is confusing or vague or unreadable, with the permission of the employee you may contact the provider; however, the contact may not be by the employee’s supervisor or by the leave of absence person.
If the employee refuses or the doctor won’t comply, the employee still has the obligation to furnish you with a clarified form.
Note from HR.BLR.com: “Clarification” means contacting the employee’s healthcare provider in order to understand the handwriting or to understand the meaning of the responses contained within the certification. Employers may not ask healthcare providers for additional information beyond that required by the certification form. The employee’s healthcare provider may require the employee’s consent for such clarification, and the employee must provide such consent or FMLA leave may be denied.
Certification Authentication
If you question the authenticity of the document, says Alexis, you may send a note to the practitioner asking, “Was this form generated by your office?”
Note from HR.BLR.com: “Authentication” means providing the healthcare provider with a copy of the medical certification and requesting verification that the information contained on the certification form was completed and/or authorized by the healthcare provider who signed the document. No additional medical information may be requested. No consent is required for authentication.
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Second and Third Medical Opinions
If you are concerned about the validity of the medical opinion, you may request that the employee seek a second medical opinion. The employee must cooperate with this request.
Note from HR.BLR.com on second and third opinions: When the second opinion differs from the first, employers may require the employee to obtain a third opinion, again at the expense of the employer. The healthcare provider for the third opinion should be approved by both the employer and the employee. This third opinion is considered to be final and binding on both the employer and employee. ( Second and third opinions are not permitted for recertification.)
Second and third medical opinions are good for difficult people or to set an example, says Alexis.
Second and third opinion reports. The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, upon request by the employee. Requested copies are to be provided within 5 business days unless extenuating circumstances prevent such action.
Servicemember caregiver leave. An employer may not require or request a second or third opinion or recertification during the period of time in which leave is supported by an ITO or ITA.
In tomorrow’s Advisor, Alexis’ eight tips for stopping intermittent leave abuse, plus great news—a 5-hour summit that will once and for all clarify the murky territory of ADA, FMLA, and workers’ compensation.
It seems like HR is sometimes reluctant to pursue the clarification and authentication that the law allows, for fear of seeming to be retaliating or interfering with leave rights.