This week, on February 5, the Family and Medical Leave Act (FMLA) turned 31! Happy birthday! Along with Presidents Washington and Lincoln, what a great month for a birthday!

To celebrate, we want to revisit a common challenges employers face in administering FMLA leave: responding to incomplete or insufficient medical certifications.

Medical Certifications 101

First, let's discuss some medical certification basics. Under the FMLA regulations, an employer may require that an employee submit a medical certification issued by a health care provider to support a leave request due to: (a) the employee's own serious health condition which makes the employee unable to perform one or more essential job functions or (b) the serious health condition of a family member. See 29 CFR §825.305(a).

The certification that supports the need for leave due to the serious health condition of an employee or the employee's family member must include the following information:

The name, address, telephone and fax number of the health care provider and type of medical practice/specialization
The approximate date on which the serious health condition started and probable duration
Appropriate medical facts regarding the patient's health condition for which FMLA leave is requested. "The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether there is prescribed medication, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment"
For the employee's own serious health condition, information sufficient to establish that the employee cannot perform the essential functions of the job as well as the nature of any other work restrictions, and the likely duration of such inability
For a family member with a serious health condition, information sufficient to establish that the family member needs care and an estimate of the frequency and duration of the leave required
If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment, information sufficient to establish the medical necessity for such a schedule, an estimate of the dates and duration of such treatments and any periods of recovery
If an employee requests leave on an intermittent or reduced schedule basis for their own serious health condition "that may result in unforeseeable episodes of incapacity, information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity"
If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that such leave is medically necessary to care for the family member, including assisting in recovery, and an estimate of the frequency and duration of the required leave

See 29 CFR §825.306(a)

Incomplete or Insufficient Certifications

The certification must be complete and sufficient. But what if it is not? The FMLA regulations set forth the process employers should use when they encounter either an incomplete or an insufficient certification.

An incomplete certification means one or more of the applicable entries or parts or the certification are left blank. See 29 CFR §825.305(c).

An insufficient certification means the responses provided in the certification are vague, ambiguous, or non-responsive. See 29 CFR §825.305(c).

Employers should not accept an incomplete or insufficient certification. They also should not immediately deny leave without giving the employee an opportunity to fix or cure the problem. Rather, employers must follow the process described in the FMLA regulations.

According to the regulations, the employer should send the employee written notice that will:

Identify the problematic entries and what information you need to make the certification compete and/or sufficient
Explain the consequences (denial of leave) for not fixing the problem
Provide the employee 7 calendar days to correct or complete the certification (unless not practicable under the circumstances despite the employee's diligent good faith efforts)

See 29 CFR §825.305(c).

Also, remember, do not request unnecessary information beyond what is permitted by the FMLA – stick to the questions on the certification form. Once you have sent the written notice, the employee must provide a complete and sufficient certification or provide an authorization for the doctor to do so. See 29 CFR §825.305(c)-(d).

Examples of the Incomplete and Insufficient Process

How does this work in real life? Here are some cases that provide examples. In the first two, the court found against the employer. In the last two, the court found in favor of the employer.

Jordan v. Marsh USA, Inc. (N.D. Ill. 2019). The employee, Jordan, submitted a FMLA certification and doctor's notes for anxiety and hypertension with an October 1 return to work date. Marsh, the employer, approved leave through September 30, but sent letters on September 29 and October 20 stating it needed appropriate medical documentation. But Marsh did not explain what was needed. Jordan did not return to work, was terminated on October 31, and sued. The court found that Marsh failed to inform Jordan in writing that her certification was incomplete or insufficient and what additional information she needed to provide. Marsh did not provide her with an opportunity to cure any deficiencies. "[A] jury reasonably could find this amounted to an interference with Jordan's FMLA rights."

Schermitzler v. Swanson (E.D. Wis. 2021). In this case, Schermitzler, the employee, submitted a FMLA certification for his mental, emotional, and physical symptoms. Swanson, the manager, contacted the doctor directly asking specific questions about Schermitzler's diagnosis (we do not recommend this by the way). After receiving the doctor's response, Swanson told Schermitzler the information remained insufficient, and FMLA would be denied without additional information. Schermitzler's doctor called Swanson directly but Swanson still denied FMLA and terminated Schermitzler. The court found a FMLA violation stating: "If Swanson believed [the] certification was incomplete or insufficient, she was required to advise Schermitzler in writing what additional information was necessary to make the certification complete and sufficient, and then provide him an opportunity to cure any such deficiency."

Newman v. HARC, Inc. (D.Conn. 2022). Here, Newman requested FMLA time to care for her husband. HARC required that she submit a medical certification. The doctor's portion of the FMLA paperwork stated that Newman needed 8 days to help a sick family member along with the days the family was incapacitated but also stated that Newman's husband: "(1) would not be in the hospital; (2) was not prescribed medication; (3) did not need treatment visits more than once per year related to his/her medical condition; (4) did not require follow up treatments or time for recovery; (5) would not require care on an intermittent or reduced schedule; and (6) would not have episodic flare ups preventing the family member from participating in normal daily activities." Further, the doctor left blank the space to "explain the care needed by the patient and why such care is medically necessary." The doctor later submitted additional paperwork which only stated that the employee's husband had a "workup pending" for depression, anxiety, and fatigue.

HARC met with Newman and requested that her doctor provide more details supporting her request. Newman refused stating it was "not HARC's business." Rather than cure the persistent deficiencies, Newman immediately resigned after the conversation. Later, she brought a lawsuit and claimed HARC should have contacted the doctor directly to obtain the information needed to cure deficiencies in her certification rather than ask her. The court disagreed, concluding "it was [Newman's] responsibility to do so, and nothing in the statute or the regulations shifts that responsibility to [the employer]."

Lott v. Playhouse Square Hotel (N.D. Ohio 2021). Lott, the employee, submitted a certification supporting hernia repair surgery. Playhouse, the employer, notified Lott in person and in writing that the certification was insufficient and asked specific questions about the surgery, the regimen of continuing treatment and a description from the doctor of job functions Lott would be unable to perform. Lott did not provide the requested information and simply resubmitted the same insufficient certification. Playhouse sent another letter stating Lott must respond by a date certain or the leave would be denied. Lott did not respond, return to work, or call in and was terminated. The court dismissed Lott's lawsuit because the certification was insufficient and Playhouse followed the appropriate procedure.

Lessons for Employers

Insist on a complete and sufficient certification at the outset. You have the right to receive all the information permitted by the regulations. The certification you receive will control the parameters of the employee's leave. If you accept an inadequate certification, you are stuck with it until recertification is appropriate and it will limit your ability to manage the employee's leave effectively.
Communicate promptly and clearly. If a certification is insufficient or incomplete, tell your employee and promptly send written notice identifying what information you need. Provide 7 calendar days for the employee to fix it and if not fixed, ask for a release permitting the employer (but not the supervisor) to speak to the health care provider directly.

Reliance Matrix Can Help!

Reliance Matrix offers employers leave administration, including federal and state family and medical leave solutions and accommodation services. For more information, contact your Reliance Matrix account manager or send us a message to AbsenceMentor@rsli.com.

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at AbsenceMentor@rsli.com.