FMLA matters

[B]By FRANK GIBSON[/B] [I]Special to the [/I]Saipan Tribune

[B]Question: An employee requested FMLA leave and I asked him to have his healthcare provider complete the certification form that’s provided for this purpose by the US Department of Labor. He was charged $50 by his doctor. Is this legal?[/B]

My first thought when I received this question was that it must somehow be in violation of the FMLA (Family Medical Leave Act). First, I had never heard of any doctor charging separately for filling out this form, as there was a charge for the patient’s visit. Second, this is a form that I understood to be required by the FMLA to obtain the leave, and if it is required by law, how can it be charged? I quickly realized that not having encountered a doctor charging for completing the form didn’t mean it couldn’t be done, and that many required documents, from birth certificates to driver’s licenses to copies of transcripts and diplomas, did, in fact, require payment. I didn’t really know the answer—so I had to research it before answering the question.
The certification form in question is the U.S. Department of Labor (USDOL) FMLA form WH-380, Certification of Health Care Provider for Employee’s Serious Health Condition, which an employer normally requires an employee, who has requested FMLA leave, to have completed by the employee’s doctor. This certification provides the employer with the information necessary to determine whether or not an employee is eligible for FMLA leave. There are separate WH-380 forms (E and F) to certify the employee’s and the family member’s serous health condition.

My research showed that the practice of charging to complete the form, while new here in the CNMI, has been occurring in the mainland. The FMLA, while allowing the employer to require that the form be completed and requiring the employee to submit it when requested, does not make it a “duty” for the physician to provide the form. The physician can charge for filling out the form, although most complete it as part of the consult. If charged separately as an administrative fee, insurances do not usually cover it. Submitting the form is an employee responsibility and does not have to be reimbursed by the employer. The employee should ensure that the form is fully completed when they accept it from the physician. If the form is incomplete and does not provide the required information, the employer can have the employee return to the physician to obtain the additional information. If the employer feels that the information on the certification might not be valid and requests a second opinion from another physician, the second opinion would be at the employer’s expense.

Although this certification is provided by the USDOL, the employer does not have to use it. The employer can create its own form, but it cannot ask for more medical information than is requested on the WH-380 form. The employer may choose not to require any formal certification from the physician if the employee provides information from the physician that the employer considers sufficient to determine that the employee is eligible for FMLA and indicates when the leave should start and when the employee should return to work. Some serious health conditions, such as pregnancy, hospitalization and body parts in casts, are fairly obvious. However, ongoing and intermittent FMLA leaves for an employee’s chronic illnesses or for the care of a family member are harder to determine and normally require the certification form.

The FMLA is a relatively new law, enacted in 1993 compared to the FLSA of 1938, which, in the words of a friend of mine with the USDOL, “is still in the state of becoming.” It is quite complex and is not easily understood. Most managers know little or nothing about the law. While sick leave and annual leave are not required or regulated by law, when the medical condition qualifies the employee for FMLA, the situation falls under a federal law subject to enforcement by the USDOL with legal liabilities for the employer. Where sick and annual leave issues can be, and often are, dealt with by managers, I would suggest that FMLA leaves be either handled or reviewed by the HR staff. HR staff should also provide training to managers so that they can recognize FMLA-eligible situations. One of the complications of the law is that the employee does not have to specifically ask for FMLA leave. It is the employer’s responsibility to recognize the eligibility and process it as an FMLA leave.

This article only addresses the question of whether the physician can charge to complete the certification form, providing a little additional information along the way. In my experience, FMLA is not well understood by employees or by managers and is a headache for HR staff. However, it is a federal law that provides employees with job protection when time-off is needed for situations covered by the law, such as serious personal or family health conditions, the birth or adoption of a child and, a recent addition, certain situations involving military family members.

For more detailed information, forms and fact sheets, please go to http://www.dol.gov/whd/fmla.

****

[I]Frank L. Gibson, SPHR, GPHR, owner of HR Support, CNMI, has been a resident of the CNMI for more than 14 years. One of the founding members of the CNMI Chapter of the Society for Human Resource Management, he has worked both as a line-manager of human resources and in the Human Resource Office.[/I]