Can Your Employer Contact Your Doctor For Purposes Of Verifying An FMLA Leave Request?

When you seek time off for a medical condition under the Family and Medical Leave Act (“FMLA”), your employer has a right to verify the need for medical leave by obtaining a second and even a third opinion from other doctors.  At the same time, under limited circumstances it’s also permissible for your employer to contact your own doctor to discuss the FMLA medical provider certification you’ve provided.

Federal law prohibits your employer from requesting additional information from your own doctor beyond that required by the federally-mandated healthcare provider certification form.  But your employer may contact the health care provider for purposes of clarification and authentication of the medical certification   To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official.  Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

“Authentication” means giving the health care provider a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested.  “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response.

Unfortunately, this is one of those laws that employers can usually violate without consequence.  The FMLA attaches no penalty to an employer’s unauthorized contact with a healthcare provider.  You can sue, but you have to prove monetary damages caused by the unauthorized contact.  If you think about it, an unauthorized contact with your doctor can’t really financially damage you, so it falls into the category of a “technical” violation for which there’s no legal claim because there’s no provable damages.  That was the conclusion of the Iowa Court of Appeals in the recent decision of Melvin Hayes v. Vermeer Manufacturing Co., in which the court held that there was no FMLA liability for an unauthorized medical contact because the employee could not prove any damages stemming from the contact.

FMLA cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

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