What your employer's human resources staff, HR, can require a doctor's note to say before your time off depends on which rules the request comes under: your employer's own sick-leave policy, a state leave law, or the Family and Medical Leave Act (FMLA), the federal law that gives eligible employees unpaid, job-protected leave for qualifying family and medical reasons. Under the FMLA the note is called a medical certification, and your employer has to tell you it is required, in the written notice of your FMLA rights and responsibilities it gives you when you first ask for leave.
What HR is entitled to ask for in writing
HR can ask you for a doctor's note or other health information when your employer needs it, for reasons such as sick leave or workers' compensation. The Privacy Rule of HIPAA, the Health Insurance Portability and Accountability Act, generally governs what your clinician, meaning the health care provider treating you, discloses, not the questions your employer asks you. If your employer asks your clinician directly for information about you, your clinician cannot give it to your employer without your authorization unless other laws require them to.
Under the FMLA, your employer may require a medical certification to verify your need for time off for a serious health condition. That is an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider, and it generally involves a period when you cannot work or carry out your usual daily activities because of the condition, its treatment or your recovery.
When the federal leave law applies to you
The federal leave law, the FMLA, applies to you only if your employer is covered and you are eligible. Public agencies, and elementary and secondary schools whether public or private, are covered whatever their size, and a private-sector employer is covered once it has 50 or more employees in 20 or more workweeks in the current or previous calendar year. You are eligible if all three of these are true:
- you have worked for that employer for at least 12 months
- you have at least 1,250 hours of service with them during the 12 months before your leave starts
- you work at a location where the employer has at least 50 employees within 75 miles.
An eligible employee can take up to 12 workweeks of leave in a 12-month period for a serious health condition that makes them unable to perform the functions of their job. When it is medically necessary, the leave does not have to be taken all at once: it can be used in whole weeks, single days, hours, or in some cases less than an hour. Whether or not the FMLA covers you, ask your state labor department whether state law gives you additional or greater protection.
Does the form have to say what is wrong with you?
No. Under the FMLA the certification needs appropriate medical facts showing that you need leave for a condition the law protects, and it does not need your diagnosis. For leave for your own condition, a complete and sufficient certification includes:
- your clinician's contact details: name, address, telephone number, fax number, and type of practice or specialty
- when the condition began and how long it is expected to last
- whether you are unable to work, meaning unable to perform one or more of the essential functions of your job
- if you are unable to work, for how long
- a description of appropriate medical facts about the condition.
Other medical facts are optional for your clinician, who may, but is not required to, provide them, including a diagnosis, symptoms or any regimen of continuing treatment. Leaving the diagnosis off does not make the certification incomplete. A certification is incomplete when one or more of the applicable entries have not been completed, and insufficient when what it gives is vague, unclear or non-responsive.
Your employer may use its own form, but it may not require any additional information beyond what is specified in the FMLA and its regulations, and it has to accept a complete and sufficient certification in any format, such as a letter on your clinician's letterhead. The only condition the certification can require you to cover is the one that caused your need for leave. For example, if you are on leave to recover from surgery and your employer asks whether you are still taking pain medication after an earlier, unrelated injury, you do not have to say, and your employer cannot deny your leave because you did not.
The certification is not to include anything about genetic tests, genetic services, or disease in your family members. Some state or local laws may also prohibit your clinician from disclosing private medical information, such as a diagnosis or a course of treatment.
Can someone at work phone your clinician or make you sign a release?
Someone from HR, a leave administrator, a management official or a health care provider acting for your employer may contact your clinician about a complete certification, but only to authenticate or clarify it, and your direct supervisor may never contact your clinician at all. Once your employer has a complete and sufficient certification, it may not ask your clinician for more information, or ask you to get more.
That contact also has to follow HIPAA's privacy rules. They cover any clinician who sends health information electronically for certain transactions, such as insurance claims. A clinician covered by them can give your employer health information that identifies you, even to clarify a certification, only once you give that clinician a written authorization. If you believe a clinician broke those rules, you can complain to the federal health department's Office for Civil Rights, which enforces them, online through its complaint portal or in writing.
No employer may require you to sign a release or waiver as part of the certification process, and completing any such authorization is at your discretion. You still have to get your employer a complete and sufficient certification, though. If you provide neither that nor an authorization letting your clinician provide one, your request for FMLA leave may be denied. You do not have to hand over your medical records either.
Your clinician gives the completed certification to you and you pass it to your employer, unless you authorize your clinician to send it to your employer directly. If you believe your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division of the Department of Labor, which enforces the law for most employees, or file a private lawsuit against your employer. State employees may face limits on suing over leave for their own serious health condition, and most federal and certain congressional employees, though covered, come under the U.S. Office of Personnel Management or Congress instead. You can phone the Wage and Hour Division's helpline on 1-866-487-9243, from 8 a.m. to 5 p.m. in your time zone.
When the certification is due, who pays and where it is filed
You generally have 15 calendar days from your employer's request to return a complete and sufficient certification, and your employer must allow you at least that long. If you make diligent, good-faith efforts and still cannot meet the deadline, you are entitled to additional time, and your employer may not deny the leave for the days the certification was late.
Without that effort, once the 15 calendar days run out, your employer can deny FMLA protection for the leave until a complete and sufficient certification arrives, while the leave in those first 15 days, and from the day the complete certification is received, stays protected. If you never provide one, the leave is not FMLA leave. So contact the clinic early, and tell your employer before the deadline if the clinic needs longer. For example, an employee who told her employer on day 10 that she had contacted her clinician, who would be unavailable to complete the certification for another 7 days, returned a complete one 22 days after the request, and all of her leave stayed protected.
If your employer finds the certification incomplete, it has to say in writing what additional information is needed, and you must be allowed at least 7 calendar days to supply what is missing, unless 7 days is not practicable despite your diligent, good-faith efforts.
You pay for the certification, and for any recertification. Your employer pays for any second or third opinion, including reasonable travel expenses. If it has reason to doubt that a complete and sufficient certification is valid, it may require a second opinion from a clinician it chooses, generally not one it employs on a regular basis, and if the two differ, a third from a clinician you and your employer select together, whose opinion is final. You are provisionally entitled to FMLA leave while you wait.
Your employer has to keep the certification as a confidential medical record, in separate files from more routine personnel files, and to keep your records confidential as other laws, such as the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA), require where those laws also apply.
When your employer wants a note before you return
Your employer can require a fitness-for-duty certification from your own clinician, showing that you are able to resume work, if it has a policy or practice that requires one from employees in similar jobs who take leave for similar health conditions. It has to tell you about that requirement in the notice designating your leave as FMLA leave, and say there whether the certification must address your ability to perform the essential functions of your job. Where a handbook or other written document clearly says such a certification will be required in specific circumstances, it may tell you orally instead. You can be required to provide it only for the condition that caused your leave, and you pay any cost of getting it. Your employer cannot hold up your return while it checks the certification with your clinician, and it may not require a second or third opinion on it, but if you were told a certification is required, it can keep you off work until you hand one in. Where state or local law or a collective bargaining agreement governs your return to work, its provisions apply.
Taking the form to the clinic
- Ask HR which rules the form is for, the FMLA, a state leave law or your employer's own sick-leave policy, and if it is the FMLA, ask for the written notice of your rights and responsibilities.
- Write down the date HR asked for the certification, since your 15 days, at least, run from it.
- Take the form to whichever clinician is treating you for the procedure. Health care providers under the FMLA include a doctor of medicine or osteopathy authorized to practice in the state where they practice, and a nurse practitioner or physician assistant authorized to practice in the state and working within the scope of their practice.
- Tell the clinician if you would rather your diagnosis stayed off.
- If the clinic cannot finish in time, tell HR before the deadline passes, and say what you have done to get it.
On an FMLA certification, weight care through NicoCares does not have to appear unless it is the reason you need the leave. Tell the surgeon's office and the anesthesia team about any weekly weight medicine you take on the day the procedure is booked (see Tell the anesthesia team about your weekly weight medicine). If NicoCares coordinated that prescription, send your NicoCares care team the procedure dates as a Spruce message too; Spruce is the messaging app you were invited to by email, and your care team replies there.
