Who may complete FMLA certifications?

Some courts say employee can fill out all sections, but health care provider must endorse it

Posted March 18, 2016

Gene’s day began on a happy note. The person in front of him at the coffee drive through had paid for his order. Gene wanted to pay it forward for the person behind him, but he was alone in the line. “Next time,” he thought. His happy mood soured a bit when, at work shortly thereafter, he reviewed Charmaine’s Family and Medical Leave Act (FMLA) certification, and noticed that her handwriting filled in not only her part, but also the part generally reserved for the health care provider. Gene rechecked the signature and didn’t think it was Charmaine’s, but he felt a bit suspicious about the validity of the certification in general. He thought about requesting a second opinion, but knew he didn’t have the budget for it. He turned to his network of colleagues in the human resources (HR) profession to see what they had to say.

The certification (and recertification) is your friend when it comes to administering FMLA leave. After all, you don’t want to give an employee the leave if the reason doesn’t qualify. At the same time, you want to apply the protections when the situation calls for it. One of the tools you use to walk this fine line is the certification.

Generally, the Department of Labor’s model certifications (for a serious health condition) are broken into three parts. The first part is completed by you (the employer). The second part is completed by the employee. The third part is completed by the health care provider. You are not, however, required to use the Department of Labor’s model forms. Interestingly enough, the FMLA regulations do not mandate that doctors complete their part of the certification. Some federal courts agree:

“Nothing in §2613(b) makes a certification insufficient if the employee happens to complete some or all of the information on the certification form. The critical point is that the certification be ‘issued’ by the health care provider and contain the information required in §2613(b), and in the Court’s opinion, a certification is ‘issued’ by a health care provider when he or she endorses the certification form, thus indicating agreement or adopting a belief that information contained in the form is accurate.”[Harcourt v. Cincinnati Bell Telephone Co., 383 F.Supp.2d 944, 954 (S.D. Ohio 2005)]

In referencing this court, another federal court indicated that “nowhere do the provisions state that the health care provider must ‘complete’ the form. [Lasher v. Medina Hospital, et al., C.A. No. 1:15CV00005 (N.D. Ohio Feb. 5, 2016)]

If Gene continued to have suspicions that the certification was not complete and sufficient, he could contact the health care provider to verify that the information was at least authorized by the health care provider.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.


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