Medical Certification Process

This guidance is intended for Tennessee cities administering Family and Medical Leave Act (FMLA) requests. Cities should route medical certifications, health-care-provider communications, recertification requests, fitness-for-duty issues, and potential FMLA violations through the city’s designated HR representative, leave administrator, or city attorney.

Medical Certification
A city may request medical certification to support an employee’s request for FMLA leave for:

• The employee’s own serious health condition.
• A spouse, child, or parent’s serious health condition.
• Military caregiver leave.
• Qualifying exigency leave.

The city should request only the information permitted by the applicable FMLA certification form and regulations. Medical certification does not have to include a diagnosis. It must provide sufficient medical facts to establish that the condition qualifies under the FMLA and that leave is needed. A health-care provider may include a diagnosis, but the city should not require it.

Cities should use the current U.S. Department of Labor forms or equivalent forms that request only permitted information. Common forms include:

• Form WH-380-E for an employee’s own serious health condition.
• Form WH-380-F for a family member’s serious health condition.
• Form WH-384 for qualifying exigency leave.
• Form WH-385 for military caregiver leave involving a current servicemember.
• Form WH-385-V for military caregiver leave involving a veteran.

Requesting Certification
A city should request medical certification when it gives the employee the FMLA rights-and-responsibilities notice. The city generally must request certification within five business days after the employee requests leave or after the city learns that leave may qualify for FMLA protection, absent extenuating circumstances. The employee generally must return the requested certification within 15 calendar days, unless it is not practicable despite the employee’s diligent, good-faith efforts.

If a certification is incomplete or insufficient, the city must identify the deficiency in writing and give the employee at least seven calendar days to correct it, unless it is not practicable despite the employee’s diligent, good-faith efforts. If the employee fails to provide complete and sufficient certification after receiving an opportunity to correct the deficiency, the city may deny FMLA protection for the absence.

Authentication and Clarification
Once a city receives a complete and sufficient certification, it may not request additional medical information from the employee’s health-care provider.

The city may contact the provider only to authenticate or clarify the certification. The city may use only:

• An HR professional.
• A designated leave administrator.
• A management official.
• Another health-care provider acting on the city’s behalf.
• An employee’s direct supervisor may never contact the employee’s health-care provider.
• Authentication means asking the provider to verify that the certification form was completed or authorized by the provider who signed it.

Clarification means asking the provider to explain handwriting or clarify the meaning of a response already provided on the certification. Clarification cannot be used to obtain medical information beyond what the FMLA certification form permits. If the employee does not authorize permitted clarification and does not otherwise clarify the certification, the city may deny FMLA leave if the certification remains unclear or insufficient.

Recertification
A city may request a new medical certification for each new FMLA leave year when an employee has a serious health condition that lasts longer than one leave year. For an ongoing condition, the city may generally request recertification no more often than every 30 days and only in connection with an employee absence. A city may request recertification every six months in connection with an absence, even if the prior certification states that the condition will last longer than six months.

A city may request recertification in fewer than 30 days when:

• The employee requests an extension of leave.
• Circumstances described in the prior certification have changed significantly.
• The city receives information that casts doubt on the employee’s stated reason for absence or the continuing validity of the certification.

For example, a city may seek recertification when an employee’s certification estimates one absence per month lasting one day, but the employee begins taking two or three absences per month lasting several days each. When requesting recertification, the city may provide the health-care provider with a record of the employee’s absence pattern and ask whether the pattern is consistent with the serious health condition. The city should not request medical information beyond what is permitted by the FMLA.

Fitness-for-Duty Certification
A city may require a fitness-for-duty certification before restoring an employee to work after FMLA leave for the employee’s own serious health condition. The city must notify the employee of this requirement in the FMLA rights-and-responsibilities notice. If the city requires the certification to address the employee’s ability to perform essential job functions, the city must provide the employee with a list of those essential functions when it gives the designation notice.

For intermittent or reduced-schedule FMLA leave, a city generally may not require a fitness-for-duty certification for every absence. However, the city may require a fitness-for-duty certification up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform job duties because of the serious health condition for which the employee took leave. Reasonable safety concerns must be based on an objective, reasonable belief that the employee’s condition may create a significant risk of harm to the employee or others. Generalized concern, rumor, or a supervisor’s preference is not enough.

Confidentiality
Cities must maintain FMLA medical certifications, health-care-provider information, work restrictions, fitness-for-duty certifications, and related medical records in confidential files separate from the employee’s regular personnel file. Supervisors should receive only the information needed to administer approved restrictions, schedule changes, work limitations, or other accommodations. They generally do not need the employee’s diagnosis, treatment details, or full medical certification. Cities should also include the GINA safe-harbor notice whenever requesting medical information. The notice directs employees and health-care providers not to provide genetic information, including family medical history.

FMLA Settlements and Releases
An employee may not waive future FMLA rights. For example, a city may not require an employee to agree that the employee will not request FMLA leave in the future as a condition of employment, return to work, or receipt of a benefit. A city and employee may voluntarily settle or release claims based on past FMLA events. Because a settlement or release may also affect ADA, Title VII, PWFA, workers’ compensation, Tennessee-law, pension, insurance, and other employment rights, the city attorney should review any proposed agreement before it is offered or signed.

PAID Program
The U.S. Department of Labor Wage and Hour Division’s Payroll Audit Independent Determination program provides a voluntary process for employers to self-identify and resolve certain wage-and-hour and FMLA issues. However, a Tennessee city generally should not rely on the PAID program to resolve potential FMLA violations. The current DOL program limits FMLA participation to eligible private employers. Government entities may participate only for certain FLSA wage-and-hour matters.

If a city identifies a potential FMLA error, such as an improper leave denial, missed designation, improper attendance discipline, failure to restore an employee, or incorrect benefit administration, the city should promptly consult the city attorney, risk-management provider, or qualified labor-and-employment counsel. Prompt corrective action may include restoring leave, correcting leave balances, removing discipline, restoring benefits, providing back pay, or resolving a claim through an appropriate agreement.