Professional Service Agreement

Employers May Require an Employee to Submit FMLA Certification from a Specialist

November 07, 2016

A federal court has held that employers may lawfully require employees requesting leave under the Family and Medical Leave Act (FMLA) to provide certification from a specialist. Employee requested a continuous leave of absence due to "severe anxiety." In support of her leave, Employee submitted certification from her primary care doctor, who indicated that Employee was "under care of psychiatrist and therapist."

Given the psychiatric nature of the problems that led to Employee’s leave of absence, Employer required that she submit a "new" certification from her "treating psychiatrist." Even more, Employer told Employee that she also would be required to provide a fitness-for-duty certification from the same psychiatrist to confirm that she was able to perform the duties of her job at the conclusion of her leave. Notably, Employer delayed Employee’s return to work for six days until she provided the additional information. Employee then sued Employer claiming that Employer interfered with her FMLA rights when it (1) required her to provide a second initial certification and (2) delayed her return to work and ordered her to provide additional information from psychiatrist about her ability to return to work.

The court rejected Employee’s argument that Employer violated the FMLA when it required initial certification from her psychiatrist. Noting that Employee’s primary care doctor "repeatedly" referenced her treating psychiatrist when describing the basis for FMLA leave, the court determined that it was lawful for the Employer to request that the treating psychiatrist cure the ambiguities in the medical certification. The court also found that Employer had the right to delay Employee’s return for six days and require a more specific fitness-for-duty certification. A generic note even from the psychiatrist stating that the Employee could return to work was not good enough. As the court also affirmed here, employers have the right to insist that the health care provider review the job description for the position and confirm that the employee can perform those job duties. And, according to this court, employers can require that this information be provided by a specialist (like a psychiatrist), as opposed to a primary care doctor.