Can an employer demand a medical release for an FMLA leave?

Several unions report that their employer, or a third-party attendance administrator such as CIGNA, is insisting that employees sign releases allowing the employer to mail FMLA medical certifications directly to doctors or other health care providers.

This practice violates FMLA regulation 825.306(e). Under the FMLA certification scheme adopted by the U.S. Department of Labor, employers must notify employees in writing if a medical certification is required, supply the certification, and allow at least 15 calendar days for its return. If a provider’s answers are incomplete or insufficient, the employer must inform the employee in writing and allow 7 days to submit additional information.
 
An employer may not insist that the employee sign a release or HIPAA authorization allowing it to send a certification directly to a provider. While an employee may voluntarily agree to this procedure, it is almost always best to personally deliver the certificate to the provider and bring it back to the employer. This enables the employee to explain what is needed and to review the certification before it goes to the employer. In some cases, the employee will want to ask the provider to revise an answer.
 
An employer that coerces an employee into signing a release and then denies FMLA leave due to a deficient certification is subject to legal action.

For more on this topic, read The FMLA Handbook: A Union Guide to the Family and Medical Leave Act by labor lawyer Robert M. Schwartz. Available for $20 here.


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