I have an employee who is taking a leave of absence using the federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). The employee provided us with a medical certification, but it looks falsified. What are my options?
You can authenticate a medical certification, but you need to review each law separately to determine the steps you must take.
FMLA
FMLA allows employers to both authenticate and clarify a medical certification. To authenticate, the employer provides the healthcare provider with a copy of the certification, requesting verification that the information on the form was completed and/or authorized by the health care provider. The employer may not request additional medical information.
Clarification also is allowed but must meet specific requirements under FMLA. (29 Code of Federal Regulations Section 825.307).
Only the following specified roles — a healthcare provider, HR professional, leave administrator or management official, but not the employee’s direct supervisor — may contact the employee’s healthcare provider for clarification or authentication.
Second and Third Opinion
When the employer has reason to doubt the validity of a medical certification, they may require the employee to obtain a second opinion of another healthcare provider, at the employer’s designation and expense, including reasonable out-of-pocket travel expenses.
The employer cannot regularly contract with or employ the employer-selected healthcare provider. (29 Code of Federal Regulations Section 825.307(b)).
If healthcare providers’ opinions differ, the employer may require the employee to obtain a third healthcare provider opinion at the employer’s expense. The employer and employee must jointly agree on the third healthcare provider.
The third healthcare provider’s opinion is final and binding.
CFRA
An employer is much more limited under CFRA, as CFRA does not allow an employer to contact the healthcare provider except to authenticate a medical certification. (Cal. Code Regulations, Title 2, Section 11091).
Second and Third Opinion
Similar to the FMLA’s process, CFRA allows for a second and third opinion. Where CFRA differs is that its standard is higher, requiring a good faith, objective reason to doubt the validity of the medical certification.
The other main difference is that CFRA allows for a second and third opinion only for the employee’s own serious health condition, but not that of their family member’s health condition.
When an employee is taking leave of absence under both FMLA and CFRA, the employer must apply the more protective law, which, in this case, would be CFRA.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
