There’s a right way and a wrong way to make sure employees have a “serious” condition that qualifies for .
Right way: Ask the employee to obtain certification from a doctor. If you don’t agree with the report, schedule another evaluation with a doctor of your choice. If the two conflict, you can obtain a tie-breaking evaluation.
Wrong way: Contact the employee’s health care provider directly. The U.S. Labor Department recently ruled that “direct contact with the employee’s health care provider is prohibited.”
Recent case: Levoyer Wilson filed an Wilson v. NHB Industries suit, claiming he told his company about his serious condition. At trial, Wilson’s lawyer argued that the company never called his doctors to determine why he was absent. The company appealed, noting that it couldn’t contact the doctors without violating the FMLA and arguing that it was wrong to tell the jury it should have. The employer won a new trial. (, No. 06-11422, 11th Cir., 2007)
- Keep Copies Of Employee Licenses, Certifications
- Feel free to deny FMLA leave to employee who alters medical certification
- Employee behavior change can count as FMLA 'notice'
- Beware suspicious timing when taking action against employee undergoing medical treatment
- Ensure past FMLA leave doesn't affect decision to rehire rebound applicant