In 1993, the United States passed the Family Medical Leave Act to enable employees to take unpaid leave for family and/or medical reasons. Typically referred to as FMLA, the law defines qualifying family members as children, spouses and parents.

Unlike short-term disability, which is a private policy that employers aren’t required to offer and provides some level of income, FMLA must be proffered by qualifying employers. It includes job protection, so employees are given either the same position or one on the same level when they are able to return to work. In addition, employees’ group health benefits must be maintained during their absence.

What is a qualifying employer?

All public agencies and private ones with 50 or more employees who work within a 75-mile radius of the company’s headquarters are included.

Who is eligible for FMLA?

Employees are qualified for FMLA if they have worked for their employer for a minimum of 12 months through at least 1,250 hours of service, not including vacation and sick days. These individuals are allowed up to 12 weeks of FMLA leave in the period of a calendar year.

According to the U.S. Department of Labor, eligible employees can take advantage of the provisions of FMLA for one or more of the following reasons:

  • The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care, and to bond with the newborn or newly-placed child.
  • To care for a spouse, son, daughter or parent who has a serious health condition, including incapacity due to pregnancy and for prenatal medical care.
  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job, including incapacity due to pregnancy and for prenatal medical care.
  • For any qualifying exigency arising out of the fact that a spouse, son, daughter or parent is a military member on covered active duty or call to covered active duty status.

Medical Certification - Authentication and Clarification

If an employee submits a complete and sufficient certification signed by a health care provider, the employer may not request additional information from the health care provider.

However, the employer may contact the employee's health care provider for purposes of clarification and authentication after the employer has given the employee an opportunity to cure any deficiencies. To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official.  

Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. No additional medical information may be requested, and the employee's permission is not required in order to request authentication.

Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form.

  • Contact between the employer and the employee's health care provider for purposes of clarification must comply with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.
  • If an employee chooses not to provide the employer with authorization to clarify the certification with the employee's health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear.

Second Opinion

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense.

Pending receipt of the second, or third, medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits.

  • If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies.
  • If the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition if requested by the second opinion health care provider in order to render a sufficient and complete second opinion, the employer may deny the taking of FMLA leave.

The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer. The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited.

Third Opinion

If the first and second opinions provided differ, the employer may require the employee to obtain certification from a third health care provider, at the employer's expense. This third opinion will be final and binding.

The third health care provider must be designated or approved jointly by the employer and the employee. The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider.

  • If the employer does not attempt in good faith to reach agreement, the employer will be bound by the first certification.
  • If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification.

If the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition if requested by the third opinion health care provider in order to render a sufficient and complete third opinion, the employer may deny the taking of FMLA leave.

A Partner in the FMLA Process

Assessments conducted through FMLA may sound complicated, but they don’t have to be. The process can benefit all parties involved if the right resources are utilized. Employers need not be reticent to participate in it. They have options to ensure it is handled correctly, from peer review to independent medical examinations (IMEs) and from the clarification level up to the third opinion.

At MLS, we’re able to provide numerous medical assessments for each step of the FMLA leave process. We’re a leading URAC-accredited national provider of FMLA medical assessments, along with peer review services and IMEs. Learn more about our team and mission to see how we partner with businesses like yours and provide exceptional client service, objective medical assessments and the protections associated with cutting-edge information technology.
FMLA and Medical Examinations: An Overview