FMLA - "I'll Show You My Scar"

A longtime employee with plenty of sick leave has just returned from several weeks off. Based on him telling us before the fact that he was having surgery, we did a preliminary FML designation. He has returned with a full release from the physician, and a note on the surgeon's letterhead indicating the dates he was under treatment. Our policy is to send a certification form for the doctor to fill out indicating the type of serious health condition (from categories 1-6, hospitalization, ongoing treatment, etc.), estimated duration, whether there is a need for intermittent leave. He is refusing to return this, indicating that his physician will charge him $25 to fill out the form. "I will come and show you my scar to prove I had surgery," is his response.

We know the FMLA allows us to require that a certification be completed. But there is other language in the regulations indicating that we could also accept information from the employee:

"Upon receipt of the requisite information from the employee or of the medical certification
which confirms the leave is for an FMLA reason, the preliminary designation becomes final."
29 CFR 825.208

Our inclination is to accept the doctor's treatment note and request written confirmation from the employee that he was off due to surgery (no, we don't want to see the scar). But we fear that if word of this gets around among employees, everyone will refuse to have the certification completed. Should we hold the line and reject this as FML without a doctor's certification?

BTW, we are hearing more frequently from employees that their medical providers are charging to fill out forms.


  • 11 Comments sorted by Votes Date Added
  • I may be anal (believe me, I have been told I was on more than one occassion), but I would still require the paperwork. Once you make an exception, you set yourself up for many more. Then where do you draw the line, and how can you explain it in court? Besides, it also puts you in the position of being the one to determine if it is a serious medical condition. Only the employee's doctor should state so, however much common sense will tell you that it is.

    As far as the $25 fee is concerned, that is between the employee and the doctor. After all, you did not select this doctor for them. The employee choose him/her.

    I remember hearing once (I think on this forum) where an HR person made a list of all the doctors who charged a fee for filling out paperwork and put it up on the employee bulletin board. The physicians soon called and wanted their names off the list. As soon as they agreed to stop charging this fee, their names came off. I understand that thier time is valuable, but they don't charge a fee when it comes to completing forms so they can collect fees for their services. They can do this for free too.

    Just my opinion.


  • Good advice from Nae squared.

    If the EE does not want to pay, they can take the discipline hit. Put it in context.
  • I was drafting a response saying stick with the FML form but Nae beat me to it. As usual, her reply is on target. Consistency is important in most things and necessary in legal areas so personally I won’t accept a note. Tell EE most drs can complete this standard form in 5 min or less and any fees, whether for treatment or filling out forms are between him and his dr.
    Depending on your org, you may need to alert supv or CEO that to maintain legal protection you may have begin progressive discipline until EE complies with policy.
  • Agree with the others. If you have a strong policy and have stuck with it in the past, stick with it again. If you stray for one, get ready to stray for more.

    As an alternative, there may be a way to simplify the form, if what your workers say about being charged is in fact true. However, do not do it in the middle of this case.
  • I hate to be the naysayer here, but I don't think you can deny FMLA leave just because he won't provide unnecessary paperwork.

    The reg you quoted indicates that you only need "requisite information from the employee ... which confirms the leave is for an FMLA reason." He gave you verbal information and a doctor's note (and a scar!), and you don't think he's lying. He has satisfied his obligation under the FMLA as far as his past absence.

    Now if he needs intermittent leave in the future, you certainly can demand additional proof.

    As for other employees, most requests aren't as clear-cut as a scar, so you could very well be justified in requiring the form for them.

    Good luck!

    James Sokolowski
  • Thanks for all the responses. I must say we were tempted to require the form with the feeling that we would "open the floodgates" otherwise, but I, too, could not interpret that "requisite information from the employee" any other way than to say we need the information, not some stinkin' piece of paper.

    I love the "clear-cut as a scar" comment, being especially fond of bad puns.
  • To further the discussion, if you examine 825.305, it clearly states:

    a) An employer may require that an employee's leave to care for the employee's seriously-ill spouse, son, daughter, or parent, or due to the
    employee's own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee's
    position, be supported by a certification issued by the health care provider of the employee or the employee's ill family member.

    There are other factors when you do require the certification, such as notifying the EE in writing of the consequences of failure to provide the certificate.

    The language in paragraph a clearly states the ER may REQUIRE the certificate. Without it, you put yourself in the position of diagnosing "serious medical condition" and that is a formula for disaster.
  • Thank you for your comments, Marc. After reading what James said, I still thought I’d stick with requiring the certification. A couple of times the HCP’s info has been difficult enough to decipher on the standard form. I decided I would still resist having to take a Dr note which may not include pertinent data, especially when the standard form doesn’t take that much time. Your clarification helps me affirm that decision. Nae & Pam, what do you two think?
  • Marc,

    I was wondering why more people weren't agreeing with me. Maybe it's because I was wrong.

    I checked with benefits attorney Anne Williams, and she thinks that you and the others are right - an employer can require a certification even when the ee obviously qualifies for FMLA. My bad.

    James Sokolowski
  • James,
    Thank you for following up with Anne & confirming our thoughts. Any of us could miss an interpretation with all we have to remember & the changes that occur. I scanned Anne’s special report on FMLA leave (so you don’t have to shamelessly plug it) x;) which seems to say that but your confirmation helps.
  • The regulations state that an employer can require certification. It doesn't really say what form the certification should take. If the doctor's note already provided gives you the information you need to determine whether or not the employee is FMLA eligible, then I think you have what you need. If the doctor's note does not provide you all that you need then, by all means, require more. But, why be redundant if you already have the information?

    As for the doctor charging the employee, you will want to check you state's statutes. In my state, the employer is required to pay for any medical information or doctor's visit that it (the employer) requires.
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