A Prescription for Medical Leave

    His employer believes that Sam’s request is unfounded and entirely manipulative. But the company’s options for seeking additional medical information about Sam are limited.

    Instead of providing employers with the tools they need to curtail the abusive use of leaves, the Family and Medical Leave Act and analogous state laws unduly restrict the medical inquiries that employers may make. Employers must contend with complicated and ambiguous rules limiting when and how they may communicate with doctors, require second opinions and question fitness-for-duty certifications.

    In the case of Sam, it seems entirely in order to require him to submit a second medical certification--from a different doctor. But the FMLA doesn’t see it that way. After an employee submits a completed and signed medical certification, the employer cannot require additional information. If the employee consents, however, the company may contact the health-care provider to "clarify and authenticate" the medical certification. Even then, the employee’s supervisor cannot make the contact; only a health-care provider representing the employer may do so. Given the effort involved, an employer doesn’t stand to gain much. Even if the employee gives the company permission, his health-care provider is not likely to contradict the information that she provided already in support of the employee’s leave request.

    This allows for the option of seeking a second opinion, which an employer may require--at its own expense--when it questions the validity of an employee’s medical certification. But employers face a quandary: how to determine what constitutes a sufficient reason to question the validity of a medical certification. Conflicting medical information suffices, but a leave request that is suspicious merely because of timing is not so clear. Companies must fly blind on this one. Neither the courts nor the U.S. Department of Labor offers helpful guidance.

    Consider this scenario. An employee suffers bouts of stress and anxiety every Friday afternoon and Monday morning. Fed up, his supervisor demands a note from the employee’s doctor substantiating each absence. The demand may not be acceptable to the DOL. The agency maintains that the notes requested are "recertifications" under the regulations, which an employer may seek only in these three instances: when an employee requests an extension of a leave; when the circumstances described in the original certification have changed significantly; or when the employer has information casting doubt on the continuing validity of the original certification. These exceptions help, but don’t necessarily apply to the scenario above and many others. What is unclear is what kind of information is sufficient to cast doubt on the employee’s original certification.

    Another problem for the employer is obtaining medical information at the end of an employee’s leave. A company may request a fitness-for-duty certification, but all that the FMLA requires is a simple statement that the employee is able to return to work. If the employer is doubtful that this is true, a health-care provider who works for the employer may contact the employee’s health-care provider, but only if the employee consents. Even then, the employer may only ask questions to clarify the employee’s fitness to return to work related to the condition for which the FMLA leave was taken.

    The regulations provide that an employer may not seek additional information, such as a second fitness-for-duty certification. But an employer may consider requiring a fitness-for-duty examination under the Americans with Disabilities Act if the employee has a legally protected disability and the medical examination is job-related and consistent with business necessity. And when the employee takes intermittent FMLA leave, an employer doesn’t even have the option to ask for a fitness-for-duty certification (for uninterrupted work) at the end of the intermittent leave.

    As a result, employers with inadequate medical information must contend with issues that aren’t clear-cut legally. Consider these examples:

    An employee submits a medical certification for a one-month leave of absence due to a back condition. The employer knows that the employee recently started remodeling his house and suspects that he simply wants the time off to finish this project. The employer may have a legally sufficient reason to question the validity of the employee’s medical certification. Simply having know­ledge that the employee has started remodeling his house, however, without further information to support the employer’s suspicion, may not be enough to require a second opinion.

    A receptionist has been taking leave for depression for the past six weeks, and has just exhausted all of her paid vacation and sick time. She tells her employer that she has to return to work because she can’t afford to take unpaid time off, but she feels low and cries often. The next day, she submits a medical certification stating that she is able to return to work. Assuming that the employee does not consent to have the employer contact her doctor, the FMLA provides that the employer must reinstate the employee. The employer may have the option under the ADA, however, to require the employee to undergo a medical examination to verify that she is able to return to work.

    Employers should tread carefully in making medical inquiries, but not assume that all inquiries are forbidden. Find the thin line between overreaching and abandoning the fight altogether.

    Most important, don’t make the mistake of assuming the worst--that employers have no rights whatsoever regarding leave requests. Some employers give up trying to monitor their employees’ need for and use of medical leaves and in so doing encourage abuse of the system. It’s far better to adopt a consistent and well-considered practice of gathering information to the extent that the law permits. No doubt such a practice requires in-house training and occasional consultation with knowledgeable legal counsel. But when information obtained is sufficient to confront a suspicious leave request, the impact on the workplace culture is positive. Employees who know that their employer will not permit an unsubstantiated leave will be less inclined to misuse their leave rights. Although stressed-out Sam may not be dissuaded, the chances are excellent that other employees like him will be.