Employer Not Entitled to Diagnosis in FMLA Medical Certification

Lisa McDougal submitted a medical certification in support of her request for FMLA leave due to nausea and pain in her abdomen and back.  On the supporting WH-380 form, McDougal's doctor indicated that she suffered from a serious health condition involving incapacity of more than three days plus health care provider treatments.  In the medical facts section of the form, the doctor noted that McDougal suffered from abdominal pain, vomiting and lumbar pain.  The doctor also indicated that the McDougal was unable to perform work of any kind, the date the condition commenced, that the probable duration was unknown, and that the employee was subject to a regimen of continuing treatment under his supervision by prescription medication. 

The employer provisionally approved FMLA leave.  However, the employer noted that the certification was vague because it did not state the diagnosis with specific reasons for the incapacity.  The certification also needed to provided a better idea of how long it could last.  The employer provided a second certification to McDougal with instructions to have it completed by a specialist.  McDougal never returned the second certification form.  The employer subsequently terminated McDougal.  McDougal sued alleging interference and retaliation in violation of the FMLA.

In awarding partial summary judgment to MacDougal, the court found that it was improper for the employer to ask for a diagnosis.  The FMLA limits the information an employer is entitled to demand in a medical certification.  A medical diagnosis is not, the court found, required. 

The court also found that the employer did not have the right to require MacDougal to submit a second medical certification.  The employee reviewing the form for the employer conceded during depositions that she needed clarification of the health care condition.  By operation of DOL regulations (29 CFR 825.307), the court found that clarification assumes that the certification is complete.  When clarification is sought, a health care provider representing the employer may, with the employee's consent, contact the employee's health care provider for clarification purposes.  The employer did not do that in this case.  The regulations do not permit an employer to require an employee to submit a completely new certification to clarify ambiguities in a complete certification.

Because it was improper for the employer to request the second medical certification, it was, according to the court, equally improper to terminate the employee for her failure to provide it.

McDougal v. Altec Industries, Inc. No. 07-15-C, 2008 U.S. Dist. LEXIS 28765 (W.D. Ky. April 8, 2008)

Comment:  With the exception of pregnancy, an employer is not entitled to a medical diagnosis naming the employee's serious health condition.  An employer that insists on a medical diagnosis as part of the medical certification violates the FMLA. 

Employers are only entitled to certain information in support of an employee's request for FMLA leave.  Employers that condition the approval of FMLA leave on receipt of medical information that is not specifically permitted, like diagnosis, will run afoul of the law.  To be safe, employers should use the DOL-approved WH-380 form, and determine FMLA leave requests based only on the information the form allows you to request. 

Note that the court also found that an employer cannot insist that an employee submit an entirely new medical certification where the employer only seeks clarification of an otherwise complete certification.  Rather, where the clarification process is invoked, an employer is limited to having the employer's health care provider, with the employee's s permission, contact the employee's health care provider.