In Taylor v. Ameritech Services, Inc., No. 07-2166, 2008 U.S. App. LEXIS 9237 (7th Cir. April 29, 2008), the court found that the employer did not interfere with the employee's FMLA rights by requiring that the completed medical certification form be faxed or mailed by the health care provider directly to the employer, rather than permitting the employee to provide the certification. The court noted that:
Nothing in the statute forbids an employer to adopt reasonable, nonburdensome measures to prevent fraud.
The court reasoned that that an employee might "forge a letter from a doctor, or embellish it before forwarding it to the employer."
Comment: To perfect the right to leave, the employee requesting leave bears the responsibility to ensure that an employer receives a medical certification, if one is requested. The FMLA does not, however, address the method of delivery of a medical certification from the health care provider to the employer.
The decision of the Seventh Circuit is based on the DOL FMLA regulations of Title I of the FMLA. Title I applies to non-civil service federal employees. Under Title I, an employer may require an employer to comply with the employer's usual and customary procedural requirements for requesting leave. 29 CFR 825.302(d). According to the Seventh Circuit, those permissible procedural requirements include the requirement that a supporting medical certification be directly submitted to the employer by the health care provider.
Title II of the FMLA applies to federal civil service employees. The OPM FMLA regulations are not identical to the DOL regulations regarding an employer's "usual and customary policies and procedures." The OPM regulation, 5 CFR 630.1206(e), focuses exclusively on the employer's usual and customary notice requirements for requesting leave. In contrast, the DOL regulation addresses the employer's usual and customary "notice and procedural requirements for requesting leave." 29 CFR 825.302(d). It could be argued that the exclusion of "and procedural requirements" in the OPM regulations limits the reach of an employer's "usual and customary" procedures to notice only, and not to certification issues. Such an interpretation would render Taylor inapposite to civil service employees.
Having said that, the OPM FMLA regulations do not specifically prohibit an employer from requiring direct submission of a medical certification from a health care provider. The issue is simply not addressed.
Direct submission of medical information from a health care provider to an employer gives rise to HIPPA issues. Generally, HIPPA prohibits disclosure of medical information to an employer absent patient authorization. However, an employee who exercised their HIPPA right and refused to authorize direct disclosure of medical information as required by employer policy would almost certainly loose FMLA protections. The employee may also be subject to disciplinary action for violating such an employer policy.
Federal employers concerned with fraud may want to consider implementing a reasonable policy requiring that any medical certification be submitted directly by the health care provider. Federal employers need to think through such a policy for civil service employees in light of the differences between the language of the DOL and OPM regulations.
The Seventh Circuit covers Wisconsin, Illinois, and Indiana.