FMLA certification can bypass employees

by on January 23, 2009 · 0 Comment POSTED IN: HR Info Center

New FMLA guidelines allow FMLA forms to go directly from doctor to employer

If you’re concerned about FMLA abuse, you may want to require employees’ doctors send you the completed FMLA certification directly rather than sending it to the employee. That’s the legal upshot of a recent case in Wisconsin.

An employee argued that by demanding his FMLA certification form be sent from the doctor to the employer, bypassing him, the employer interfered with his FMLA leave rights.

But the court disagreed. Permitting the employee to deliver the FMLA form “would facilitate fraud,” the court said. “The applicant might forge a letter from the doctor, or, after receiving the doctor’s letter, embellish it before forwarding it to the employer.”

PRIVACY ISSUES?

What of medical privacy, you may ask?

Indeed, HIPAA bars the disclosure of most medical information to an employer without patient authorization. Employees who insisted on their HIPAA rights in a case like this would risk losing their FMLA protection.

How? They would be blocking the FMLA certification process. No serious medical condition means no FMLA protections are needed. And the serious medical condition has to be certified by a medical provider per FMLA law.

Cite: Taylor v. Ameritech, No. 07-2166, 7th Cir., 4/29/08.

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