(a) Required information from health care provider. When leave is
taken to care for a covered servicemember with a serious injury or
illness, an employer may require an employee to obtain a certification
completed by an authorized health care provider of the covered
servicemember. For purposes of leave taken to care for a covered
servicemember, any one of the following health care providers may
complete such a certification:
(1) A United States Department of Defense ("DOD") health care
provider;
(2) A United States Department of Veterans Affairs ("VA") health
care provider;
(3) A DOD TRICARE network authorized private health care provider;
or
(4) A DOD non-network TRICARE authorized private health care
provider.
(b) If the authorized health care provider is unable to make
certain military-related determinations outlined below, the authorized
health care provider may rely on determinations from an authorized DOD
representative (such as a DOD recovery care coordinator). An employer
may request that the health care provider provide the following
information:
(1) The name, address, and appropriate contact information
(telephone number, fax number, and/or email address) of the health care
provider, the type of medical practice, the medical specialty, and
whether the health care provider is one of the following:
(i) A DOD health care provider;
(ii) A VA health care provider;
(iii) A DOD TRICARE network authorized private health care
provider; or
(iv) A DOD non-network TRICARE authorized private health care
provider.
(2) Whether the covered servicemember's injury or illness was
incurred in the line of duty on active duty;
(3) The approximate date on which the serious injury or illness
commenced, and its probable duration;
(4) A statement or description of appropriate medical facts
regarding the covered servicemember's health condition for which FMLA
leave is requested. The medical facts must be sufficient to support the
need for leave. Such medical facts must include information on whether
the injury or illness may render the covered servicemember medically
unfit to perform the duties of the servicemember's office, grade, rank,
or rating and whether the member is receiving medical treatment,
recuperation, or therapy;
(5) Information sufficient to establish that the covered
servicemember is in need of care, as described in Sec. 825.124, and
whether the covered servicemember will need care for a single
continuous period of time, including any time for treatment and
recovery, and an estimate as to the beginning and ending dates for this
period of time;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment appointments for the
covered servicemember, whether there is a medical necessity for the
covered servicemember to have such periodic care and an estimate of the
treatment schedule of such appointments;
(7) If an employee requests leave on an intermittent or reduced
schedule basis to care for a covered servicemember other than for
planned medical treatment (e.g., episodic flare-ups of a medical
condition), whether there is a medical necessity for the covered
servicemember to have such periodic care, which can include assisting
in the covered servicemember's recovery, and an estimate of the
frequency and duration of the periodic care.
(c) Required information from employee and/or covered
servicemember. In addition to the information that may be requested
under Sec. 825.310(b), an employer may also request that such
certification set forth the following information provided by an
employee and/or covered servicemember:
(1) The name and address of the employer of the employee requesting
leave to care for a covered servicemember, the name of the employee
requesting such leave, and the name of the covered servicemember for
whom the employee is requesting leave to care;
(2) The relationship of the employee to the covered servicemember
for whom the employee is requesting leave to care;
(3) Whether the covered servicemember is a current member of the
Armed Forces, the National Guard or Reserves, and the covered
servicemember's military branch, rank, and current unit assignment;
(4) Whether the covered servicemember is assigned to a military
medical facility as an outpatient or to a unit established for the
purpose of providing command and control of members of the Armed Forces
receiving medical care as outpatients (such as a medical hold or
warrior transition unit), and the name of the medical treatment
facility or unit;
(5) Whether the covered servicemember is on the temporary
disability retired list;
(6) A description of the care to be provided to the covered
servicemember and an estimate of the leave needed to provide the care.
(d) DOL has developed an optional form (WH-385) for employees' use
in obtaining certification that meets FMLA's certification
requirements. (See Appendix H to this Part 825.) This optional form
reflects certification requirements so as to permit the employee to
furnish appropriate information to support his or her request for leave
to care for a covered servicemember with a serious injury or illness.
WH-385, or another form containing the same basic information, may be
used by the employer; however, no information may be required beyond
that specified in this section. In all instances the information on the
certification must relate only to the serious injury or illness for
which the current need for leave exists. An employer may seek authentication
and/or clarification of the certification under Sec. 825.307. However,
second and third opinions under Sec. 825.307 are not permitted for leave
to care for a covered servicemember. Additionally, recertifications
under Sec. 825.308 are not permitted for leave to care for a covered
servicemember. An employer may require an employee to provide confirmation
of covered family relationship to the seriously injured or ill servicemember
pursuant to Sec. 825.122(j) of the FMLA.
(e) An employer requiring an employee to submit a certification for
leave to care for a covered servicemember must accept as sufficient
certification, in lieu of the Department's optional certification form
(WH-385) or an employer's own certification form, "invitational travel
orders" ("ITOs") or "invitational travel authorizations"
("ITAs") issued to any family member to join an injured or ill
servicemember at his or her bedside. An ITO or ITA is sufficient
certification for the duration of time specified in the ITO or ITA.
During that time period, an eligible employee may take leave to care
for the covered servicemember in a continuous block of time or on an
intermittent basis. An eligible employee who provides an ITO or ITA to
support his or her request for leave may not be required to provide any
additional or separate certification that leave taken on an
intermittent basis during the period of time specified in the ITO or
ITA is medically necessary. An ITO or ITA is sufficient certification
for an employee entitled to take FMLA leave to care for a covered
servicemember regardless of whether the employee is named in the order
or authorization.
(1) If an employee will need leave to care for a covered
servicemember beyond the expiration date specified in an ITO or ITA, an
employer may request that the employee have one of the authorized
health care providers listed under Sec. 825.310(a) complete the DOL
optional certification form (WH-385) or an employer's own form, as
requisite certification for the remainder of the employee's necessary
leave period.
(2) An employer may seek authentication and clarification of the
ITO or ITA under Sec. 825.307. An employer may not utilize the second
or third opinion process outlined in Sec. 825.307 or the
recertification process under Sec. 825.308 during the period of time
in which leave is supported by an ITO or ITA.
(3) An employer may require an employee to provide confirmation of
covered family relationship to the seriously injured or ill
servicemember pursuant to Sec. 825.122(j) when an employee supports
his or her request for FMLA leave with a copy of an ITO or ITA.
(f) In all instances in which certification is requested, it is the
employee's responsibility to provide the employer with complete and
sufficient certification and failure to do so may result in the denial
of FMLA leave. See Sec. 825.305(d).
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68104, Nov. 17, 2008]
