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 * Fact Sheet #28G: Medical Certification under the Family and Medical Leave Act




Print Fact Sheet

WAGE AND HOUR DIVISION

UNITED STATES DEPARTMENT OF LABOR


FACT SHEET #28G: MEDICAL CERTIFICATION UNDER THE FAMILY AND MEDICAL LEAVE ACT

March 2023

The Family and Medical Leave Act (FMLA) provides job-protected leave from work
for family and medical reasons.

This fact sheet explains the medical certification process when an employee
requests leave for their own or a family member’s serious health condition, if
requested by the employer. 

 


ABOUT THE FMLA

The FMLA provides eligible employees of covered employers with job-protected
leave for qualifying family and medical reasons and requires continuation of
their group health benefits under the same conditions as if they had not taken
leave. FMLA leave may be unpaid or used at the same time as employer-provided
paid leave. Employees must be restored to the same or virtually identical
position when they return to work after FMLA leave.

Eligible employees: Employees are eligible if they:

 * Work for a covered employer for at least 12 months,
 * Have at least 1,250 hours of service with the employer during the 12 months
   before their FMLA leave starts, and
 * Work at a location where the employer has at least 50 employees within 75
   miles.

Covered employers: Covered employers under the FMLA include:

 * Private-sector employers who employ 50 or more employees in 20 or more
   workweeks in either the current calendar year or previous calendar year,
 * Public agencies,  (including Federal, State, and local government employers,
   regardless of the number of employees, and
 * Local educational agencies (including public school boards, public elementary
   and secondary schools, and private elementary and secondary schools,
   regardless of the number of employees).

The FMLA protects leave for:

 * The birth of a child or placement of a child with the employee for adoption
   or foster care,
 * The care for a child, spouse, or parent who has a serious health condition,
 * A serious health condition that makes the employee unable to work, and 
 * Reasons related to a family member’s service in the military, including
   * Qualifying exigency leave –leave for certain reasons related to a family
     member’s foreign deployment, and 
   * Military caregiver leave – leave when a family member is a current
     servicemember or recent veteran with a serious injury or illness.

For more information about the FMLA generally, see Fact Sheet #28.

 


CERTIFYING A SERIOUS HEALTH CONDITION

The FMLA defines a serious health condition as an illness, injury, impairment,
or physical or mental condition that involves either inpatient care or
continuing treatment by a health care provider. An FMLA serious health condition
generally involves a period of incapacity. Incapacity means an individual is
unable to work, attend school, or perform other regular daily activities because
of the serious health condition, due to treatment of it, or for recovery from
the condition. For more information about the definition of a serious health
condition, see Fact Sheet #28P.

An employee may be required by the employer to submit a certification from a
health care provider to support the need for FMLA leave to care for a covered
family member with a serious health condition or for the employee’s own serious
health condition. The employee cannot be required to provide a certification for
leave to bond with a newborn child or a child placed for adoption or foster
care.

Content. The employer may require an employee to obtain a certification that
includes the following information:

 * Contact information for the certifying health care provider,
 * The date the serious health condition began and how long it will last,
 * Appropriate medical facts about the condition such as symptoms,
   hospitalization, or doctor’s visits,
 * For leave for the employee’s own serious health condition, information
   showing that the employee cannot perform the essential functions of the job,
 * For leave to care for a family member, a statement establishing the family
   member needs care, and an estimate of when and how long the leave is needed,
   or
 * For leave that needs to be taken in short blocks of time, an estimate of how
   much time will be needed for each absence, how often absences may occur, and
   information establishing the medical necessity for taking such intermittent
   leave.

The certification should not contain information about genetic tests, genetic
services, or evidence of disease among the employee’s family members. The health
care provider may, but is not required to, provide a diagnosis.

Certification by a health care provider. Under the FMLA a health care provider
includes:

 * A doctor of medicine or osteopathy authorized to practice medicine or surgery
   in the state in which they practice,
 * A podiatrist, dentist, clinical psychologist, optometrist, or chiropractor
   -with limitations- authorized to practice in the state and performing within
   the scope of their  practice,
 * A nurse practitioner, nurse-midwife, clinical social worker, or physician
   assistant authorized to practice in the state performing within the scope of
   their practice,
 * A Christian Science practitioner listed with the First Church of Christ,
   Scientist, in Boston, Massachusetts, or
 * Any health care provider from whom the employer or the employer’s group
   health plan’s benefits manager will accept a medical certification to
   substantiate a claim for benefits.

If the employee or the employee’s family member is visiting another country, or
a family member resides in another country, and a serious health condition
develops, the employer must accept a medical certification, including second and
third opinions, from a health care provider who practices in that country. If a
medical certification by a foreign health care provider is not in English, the
employee may be required to provide a written translation of the certification.

Responsibility and timing. The employee must be notified each time a
certification is required. Notice of the certification requirement must be
included in the written notice of FMLA rights and responsibilities given to the
employee when leave is first requested. The employer may request that the
employee provide certification at a later date if the employer questions the
appropriateness of the leave or its duration.

When the deadline is not met. Generally, the employee must provide the requested
certification to the employer within 15 calendar days after the employer's
request. If an employee fails to return the certification in a timely manner,
the employer can deny FMLA protections for the leave following the expiration of
the 15-calendar day period until a complete and sufficient certification is
provided. However, the leave taken during 15-day period and the period of
absence beginning the day the complete certification was received is
FMLA-protected leave.

When an employee makes diligent, good faith efforts but is still unable to meet
the deadline for submission – at least 15-calendar days from the request – the
employee is entitled to additional time to provide the certification. In this
circumstance, the employer may not deny the leave for the period that the
certification was late.

The employer may allow longer than 15 calendar days for certification. In all
cases, if the employee never produces the certification, the leave is not
FMLA-protected leave.

Examples:

 * Denise’s employer gives her 15 calendar days to provide a certification. She
   does not provide certification until 30 calendar days after her employer
   requests it. She says she did not reach out to her health care provider
   earlier because she was busy. Denise’s employer may deny FMLA protections for
   leave taken on days 16 through day 30, but not for leave that occurred on
   days 1 – 15 or leave on day 31 and after.
 * LaDonna’s employer gives her 15 calendar days to provide a certification.
   After 10 calendar days, she advises her employer that she has contacted her
   health care provider for certification, but the health care provider will be
   unavailable to complete the certification for an additional 7 days. LaDonna
   returns a complete and sufficient certification on the 18th day after the
   employer’s request. LaDonna’s leave during all of the 18 days and the days
   that follow are FMLA-protected.

Complete and sufficient certification. If the employer requests a medical
certification, the employee is responsible for providing a complete and
sufficient certification, including paying for the cost of the certification and
making sure the certification is provided to the employer on time. The employee
must be given at least 15 calendar days after the employer’s request to provide
the certification and the employee is expected to make a diligent, good faith
effort to meet the timing requirement. 

A certification is considered incomplete if one or more of the applicable
entries on the form have not  been completed. A certification is considered
insufficient if the information provided is vague, unclear, or non- responsive. 

An employee who receives a written notice from the employer stating that the
certification is incomplete or insufficient and stating what additional
information is necessary must provide the additional information to the employer
within seven calendar days in most circumstances.

Examples:

 * Trey needs FMLA leave to care for his spouse who is undergoing planned
   treatment for a serious health condition. At his employer’s request, he
   provides a medical certification completed by his spouse’s health care
   provider. The employer returns the certification as incomplete because the
   health care provider did not include his spouse’s planned treatment dates.
   Trey must provide the employer with information from the health care provider
   regarding his spouse’s planned treatment dates to make the certification
   complete and sufficient.
 * Xochitl takes FMLA leave to recover after a surgery. The employer returns
   certification documents provided by Xochitl’s health care provider and asks
   whether Xochitl is still taking pain medication after a previous injury
   unrelated to the surgery. Xochitl does not need to provide information about
   the previous condition to receive approval to take FMLA leave for recovery
   from surgery. The employer cannot deny her leave for not providing this
   information.

Annual certification. If the employee’s need for FMLA leave lasts beyond a
single FMLA leave year, the employee may be required to provide a new medical
certification in each new FMLA leave year.

Certification forms. The FMLA does not require the use of any specific
certification form. The Department has developed optional forms that can be used
for leave for an employee’s own serious health condition (WH-380-E) or to care
for a family member’s serious health condition (WH-380-F). If an employer
chooses to use its own forms, it may not require any additional information
beyond what is specified in the FMLA and its regulations.

Employers must accept a complete and sufficient medical certification,
regardless of the format.

The employee may be required to provide information requested on the
certification form only about the serious health condition which has caused the
employee’s need for leave.

 


AFTER THE CERTIFICATION IS COMPLETED

Authentication and clarification. The employer may not request additional
information from the health care provider after receiving a complete and
sufficient certification. Under the FMLA, the employee’s direct supervisor may
never contact the employee’s health care provider. However, the employer may
contact the health care provider to authenticate or to clarify a certification
using a:

 * Human resource professional,
 * Leave administrator,
 * Management official, or
 * Another health care provider.

For example, the employer’s appropriate representative could ask a health care
provider whether the information contained on the form was completed or
authorized by them. The representative might also ask questions to clarify the
handwriting on the form or the meaning of a response.

Second and third opinions. The employee may be required to get a second medical
certification if the employer has reason to doubt the validity of a complete and
sufficient certification. The employer can choose the health care provider to
provide the second opinion, but generally may not select a health care provider
who it employs or contracts with on a regular basis. If the second opinion is
different from the original certification, the employer may require the employee
to get a third certification from a health care provider selected by both the
employee and employer. The opinion of the third health care provider is final
and must be used by the employer. The employer is responsible for paying for the
second and third opinions, including any reasonable travel expenses for the
employee or family member. The employee is provisionally entitled to FMLA leave
while waiting for the second or third opinion.

Recertification. In general, the employer may require an employee to provide a
recertification of a serious health condition, but no more often than every 30
days and only in connection with an absence. If a certification indicates that
the minimum duration of the serious health condition is more than 30 days, the
employer must generally wait until that minimum duration expires before
requesting recertification. However, in all cases, including those where the
condition may be indefinite, the employer may request a recertification for
absences every six months.  The employer may request a recertification in less
than 30 days only if the:

 * Employee requests an extension of leave,
 * Circumstances described by the previous certification have changed
   significantly, or
 * Employer receives information that causes it to doubt the employee’s stated
   reason for the absence or the continuing validity of the existing medical
   certification.

In general, the employer may require the same information in a recertification
as that permitted in the original medical certification. However, an employer
may provide the health care provider with a record of the employee’s absences
and ask if the serious health condition and need for leave is consistent with
the leave pattern. The employee is responsible for paying for the cost of a
recertification. The employee cannot be required to undergo a      second or
third opinion for a recertification. In most circumstances, the employee must be
provided at least 15 calendar days to provide the recertification after the
employer’s request.

Returning to work. An employee may be required to provide the employer with a
“fitness-for-duty,” certification from the employee’s health care provider
showing that the employee is able to resume work, if the employer has a policy
or practice that requires employees in similar job positions who take leave for
similar health conditions to provide such a certification. If a
“fitness-for-duty” certification will be required, the employer must provide
notice of that requirement and whether the certification must address the
employee’s ability to perform the essential functions of their job with the FMLA
designation notice.

The employee may only be required to provide a fitness-for-duty certification
with regard to the particular health condition that caused the employee’s need
for FMLA leave. In general, a fitness-for-duty certification may not be required
for each absence taken on an intermittent or reduced leave schedule. However,
the employee may be required to provide a fitness-for-duty certification up to
once every 30 days if the employer has a reasonable belief that the employee’s
return to work presents a significant risk of harm to the employee or to others.

The employee’s return to work may be delayed until the fitness-for-duty
certification is provided if the employer has provided the required notice
regarding any fitness-for-duty certification requirement. An employer may
contact an employee’s health care provider to clarify or authenticate a
fitness-for-duty certification but cannot delay the employee’s return to work
while making that contact. An employer may not require second or third opinions
for a fitness-for-duty certification. The employee is responsible for paying any
cost of obtaining the fitness-for-duty certification. If State or local law or
collective bargaining agreement governs an employee’s return to work, those
provisions must be applied.

 


ADDITIONAL INFORMATION

Certification may also be requested for military family leave reasons. For more
information about certification requirements for military family leave, see Fact
Sheet #28M(c); Fact Sheet #28M(a); and Fact Sheet #28M(b).

The employer may not request a certification for leave to bond with a newborn
child or a child placed for adoption or foster care. However, employers may
request documentation to confirm the family relationship.


CONFIDENTIALITY OF RECORDS

Covered employers are required to maintain records and documents relating to
FMLA medical certifications and recertifications of employees or their family
members as confidential medical records. Such records are to be maintained in
separate files from the usual personnel files. An employer must maintain records
in conformance with the confidentiality requirements of the Americans with
Disabilities Act (ADA), as amended, if applicable, and the Genetic Information
Nondiscrimination Act, if applicable.

 


ADDITIONAL PROTECTIONS


STATE LAWS

Some States have their own family and medical leave laws. Nothing in the FMLA
prevents employees from receiving protections under other laws. Workers have the
right to benefit from all the laws that apply.


PROTECTION FROM RETALIATION

The FMLA is a federal worker protection law. Employers are prohibited from
interfering with, restraining, or denying the exercise of, or the attempt to
exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations
constitute interfering with, restraining, or denying the exercise of rights
provided by the FMLA. For more information about prohibited employer retaliation
under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.


ENFORCEMENT

The Wage and Hour Division is responsible for administering and enforcing the
FMLA for most employees. If you believe that your rights under the FMLA have
been violated, you may file a complaint with the Wage and Hour Division or file
a private lawsuit against your employer in court. State employees may be subject
to certain limitations in pursuit of direct lawsuits regarding leave for their
own serious health conditions. Most federal and certain congressional employees
are also covered by the law but are subject to the jurisdiction of the U.S.
Office of Personnel Management or Congress.


WHERE TO OBTAIN ADDITIONAL INFORMATION

For additional information, visit our Wage and Hour Division Website:
http://www.dol.gov/agencies/whd and/or call our toll-free information and
helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE
(1-866-487-9243).

This publication is for general information and is not to be considered in the
same light as official statements of position contained in the regulations.

The contents of this document do not have the force and effect of law and are
not meant to bind the public in any way. This document is intended only to
provide clarity to the public regarding existing requirements under the law or
agency policies.

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