(a) Required information. When leave is taken because of an
employee's own serious health condition, or the serious health
condition of a family member, an employer may require an employee to
obtain a medical certification from a health care provider that sets
forth the following information:
(1) The name, address, telephone number, and fax number of the
health care provider and type of medical practice/specialization;
(2) The approximate date on which the serious health condition
commenced, and its probable duration;
(3) A statement or description of 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 medication has been
prescribed, any referrals for evaluation or treatment (physical
therapy, for example), or any other regimen of continuing treatment;
(4) If the employee is the patient, information sufficient to
establish that the employee cannot perform the essential functions of
the employee's job as well as the nature of any other work
restrictions, and the likely duration of such inability (see Sec.
825.123(b) and (c));
(5) If the patient is a covered family member with a serious health
condition, information sufficient to establish that the family member
is in need of care, as described in Sec. 825.124, and an estimate of
the frequency and duration of the leave required to care for the family
member;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment of the employee's or a
covered family member's serious health condition, information
sufficient to establish the medical necessity for such intermittent or
reduced schedule leave and an estimate of the dates and duration of
such treatments and any periods of recovery;
(7) If an employee requests leave on an intermittent or reduced
schedule basis for the employee's serious health condition, including
pregnancy, 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; and
(8) 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, as described in Sec. Sec. 825.124 and
825.203(b), which can include assisting in the family member's
recovery, and an estimate of the frequency and duration of the required
leave.
(b) DOL has developed two optional forms (Form WH-380E and Form WH-
380F, as revised) for use in obtaining medical certification, including
second and third opinions, from health care providers that meets FMLA's
certification requirements. (See Appendix B to this Part 825.) Optional
form WH-380E is for use when the employee's need for leave is due to
the employee's own serious health condition. Optional form WH-380F is
for use when the employee needs leave to care for a family member with
a serious health condition. These optional forms reflect certification
requirements so as to permit the health care provider to furnish
appropriate medical information. Form WH-380E and WH-380F, as revised,
or another form containing the same basic information, may be used by
the employer; however, no information may be required beyond that
specified in Sec. Sec. 825.306, 825.307, and 825.308. In all instances
the information on the form must relate only to the serious health
condition for which the current need for leave exists.
(c) If an employee is on FMLA leave running concurrently with a
workers' compensation absence, and the provisions of the workers'
compensation statute permit the employer or the employer's
representative to request additional information from the employee's
workers' compensation health care provider, the FMLA does not prevent
the employer from following the workers' compensation provisions and
information received under those provisions may be considered in
determining the employee's entitlement to FMLA-protected leave.
Similarly, an employer may request additional information in accordance
with a paid leave policy or disability plan that requires greater
information to qualify for payments or benefits, provided that the
employer informs the employee that the additional information only
needs to be provided in connection with receipt of such payments or
benefits. Any information received pursuant to such policy or plan may
be considered in determining the employee's entitlement to FMLA-
protected leave. If the employee fails to provide the information
required for receipt of such payments or benefits, such failure
will not affect the employee's entitlement to take unpaid FMLA
leave. See Sec. 825.207(a).
(d) If an employee's serious health condition may also be a
disability within the meaning of the Americans with Disabilities Act
(ADA), as amended, the FMLA does not prevent the employer from
following the procedures for requesting medical information under the
ADA. Any information received pursuant to these procedures may be
considered in determining the employee's entitlement to FMLA-protected
leave.
(e) While an employee may choose to comply with the certification
requirement by providing the employer with an authorization, release,
or waiver allowing the employer to communicate directly with the health
care provider of the employee or his or her covered family member, the
employee may not be required to provide such an authorization, release,
or waiver. 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).
[73 FR 68101, Nov. 17, 2008]
