SECTION 7: MEDICAL CERTIFICATION
Management requires that leaves for a serious health condition for an employee or qualifying family member be supported with a medical certification from a health care provider. Refer to Section 1: Definitions of Commonly Used FMLA/CFRA Terms for a list of appropriate health care providers. The County's Certification of Health Care Provider (CHCP) form must be used for this purpose. Departments cannot design their own form and the original CHCP (not photocopies) must be submitted. Faxes are acceptable but must be followed up by submission of the original document. The request to an employee for a medical certification must be in writing, should be provided to the employee each time a certification is required (but no less often than the first time in each six-month period that an employee gives notice of the need for FMLA leave), and shall inform the employee of the consequences in the event medical certification is not provided in a timely manner.
The CFRA prohibits requesting a diagnosis or description of symptoms with regard to the serious health condition of the employee or family member.
If the need for leave is foreseeable, employees must provide management at least 30 days advance notice prior to the start of the leave. If the need for leave is unforeseeable, due to lack of knowledge or an emergency, notice must be given as soon as possible.
In most cases, management should request that an employee furnish certification from a health care provider at the time the employee gives notice of the need for leave or within five business days thereafter, or in the case of unforeseen leave, within five business days after the leave commences. The employee must provide the completed medical certificate within 15 calendar days from the date management makes the request, unless it is not feasible to do so despite the employee's good faith efforts.
If an employee provides a complete certification signed by the health care provider, the employer may not request additional information beyond what is required by the certification form. The County may seek authentication of the medical certification in accordance with Health Insurance Portability and Accountability Act (HIPAA) by contacting the health care provider with the employee's permission. The employer's contact person may be a health care provider, human resources professional, leave administrator or management official. In no case may the employer representative be the employee's direct supervisor. If clarification of the medical certification is needed, the employer must identify what information needs clarification and request that the employee provide clarification from his or her health care provider. The County must not contact the health care provider for clarification.
In the event of an incomplete or insufficient certification, the employer shall advise the employee in writing and give the employee seven calendar days to cure any deficiency, unless it is not feasible despite the employee's good faith efforts.
In circumstances when the employee or a family is visiting in another country, or family member resides in another country and a serious health condition develops, the employer shall accept a medical certification as well as a second and third opinions from a health care provider who practices in that country. Medical certification from a family member's health care provider need only confirm that the employee's presence would be beneficial to the ill family member.
Failure to Submit Medical Certification
When leave is foreseeable, FMLA and/or CFRA may be delayed until the employee provides the medical certification if:
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Management provided a request for the certification (this can be satisfied by proper posting) at the time the leave was requested
and
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There were no extenuating circumstances, which prevented the submission of the certification in a timely fashion (within 15 calendar days from request).
If the employee fails to provide medical certification within a reasonable time, management may delay or deny the start or continuation of FMLA and/or CFRA leave. If the employee does not make a good faith effort to return the CHCP or never produces medical certification, the leave will not be designated as FMLA and/or CFRA and the absences will be subject to the department's attendance policy. If the employer extends the deadline for the employee to submit medical certifications, the extension should be in writing and clearly state the consequences for failing to submit the certification by the deadline.
EXAMPLE
James went out on an unforeseen family leave and immediately turned in his CHCP to his physician when he received it. James returned to work four weeks later but his CHCP was not received until the following week with a note stating that the processing of the CHCP was delayed in his doctor's office. James' leave will be designated as FMLA and/or CFRA leave because he made a good faith effort to turn in the CHCP and the delay was on the part of the health care provider.
Each situation should be evaluated on a case by case basis if the CHCP has not been received in a reasonable time. Generally, if the CHCP has not been received timely, the leave documentation due date should be extended up to two times before the leave is denied. If the CHCP is not returned, at that point the absences may be subject to the department's attendance policy. If management decides a leave of absence is not going to be designated as FMLA and/or CFRA leave, the employee must immediately be advised in writing that his or her leave will not be designated as FMLA and/or CFRA leave and the absences are subject to the department's attendance policy. If an employee is communicating with the Department, and the delay of the CHCP is unavoidable, Departments should continue to work with the employee to obtain the certification. If necessary, consult with the Countywide Family and Medical Leave Coordinator.
Recertification
Management may not request medical recertification more than once every 30 days and only in connection with an absence unless:
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The stated duration on the medical certification has expired.
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Circumstances described in the previous certification have significantly
changed (e.g., the duration or frequency of absences, the severity of the condition, complications).
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Management receives information that casts a good faith objective reason to doubt upon the continuing validity of the certification.
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There is an ongoing pattern of unscheduled absences (such as Mondays, Fridays, days before and after holidays, etc.).
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The employee requests an extension of the leave beyond the time period specified on the medical certification.
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The employee has already been instructed to provide medical certification in accordance with an existing plan for their attendance for non-FMLA absences and conditions.
The employee must provide the recertification at his or her own expense. The recertification must be completed by a health care provider and returned to management within 15 calendar days from the date management makes the request, unless there are extenuating circumstances.
If the employee fails to provide the medical recertification within 15 calendar days from the date of request (absent extenuating circumstances), the employer may delay the continuation of FMLA and/or CFRA leave until the recertification is received. If the employee never produces the medical recertification, the leave will not be designated as FMLA and/or CFRA leave and absences will be subject to the department's attendance policy.
Other Recertification Guidelines
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Management may require the employee on FMLA and/or CFRA leave to periodically report to the department to confirm their intended return to work, provided that such a request is conducted in a consistent and non-discriminatory manner.
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Management has the right to waive medical certification if certification seems unnecessary based on the facts and circumstances of the particular case, provided that such a waiver is conducted in a consistent and non-discriminatory manner for all similarly situated illnesses.
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If the employee finds that he or she needs more or less leave time than originally anticipated, management can require the employee to notify the department within two (2) business days of the changed circumstance(s).
NOTE: If an employee gives unequivocal notice of his or her intent not to return to work, the employer's obligation to maintain health benefits and to restore the employee ceases. Once the employee's employment ends and is updated on the County's eHR system, Consolidated Omnibus Budget Reconciliation Act (COBRA) rights will be automatically sent to the employee within 30 days by the County's benefits administrator. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.
Release to Return to Work and Fitness-for-Duty Reports
A release to return to work is a statement from the employee's health care provider stating that the employee is able to resume the employee's job duties. If the FMLA and CFRA leave is due to the employee's own serious health condition, a release to return to work statement may be requested for the condition which caused the need for FMLA and/or CFRA leave, if the following conditions are met:
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A release to return to work statement is required for all similarly situated employees with serious health conditions and there is no collective bargaining agreement forbidding a release to return to work statement.
and
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The employee was informed of his or her responsibility to provide a release to return to work statement at the time the notice of the need for leave was given or immediately after it commenced. This requirement can be fulfilled by providing the employee with a written notice of the release to return to work requirement.
If both of the above conditions are met, management may require that the employee provide a release to return to work statement before the employee may return to work. Any absence due to the failure to provide a release to return to work will be subject to the department's attendance policy. For example, if the department has a policy that requires pre-approval for usage of vacation time, the department is not obligated to approve vacation to cover the time away from work to obtain the return to work statement.
If, on the other hand, management failed to inform the employee of the release to return to work requirement or does not require a release to return to work for similarly situated employees, the employee's return to work cannot be conditioned upon or delayed by the employee's failure to provide a release to return to work statement.
An employer may not condition an employee's return to work on a County required fitness-for-duty examination. After an employee returns from their protected leave of absence, any fitness-for-duty examination must be job-related and consistent with business necessity. However, this does not negate the need for a more detailed report if such is required by other laws such as ADA, Workers' Compensation and/or MOUs governing an employee's return to work.
The employer may only require a release to return to work statement from employees on intermittent or reduced schedule leave if reasonable safety concerns exist and no more frequently than once every 30 days.