Employer Is Not Permitted to Make Direct Contact With Health Care Provider to Determine Existence of Serious Health Condition

In Wilson v. NJB Industries, Inc., No. 06-11422, 2006 U.S. App. LEXIS 953 (11th Cir. Jan. 17, 2007), the employee argued that the employee provided sufficient notice that he needed leave for a serious health condition to trigger the employer's duty to make further inquiry to determine whether the absences were FMLA covered.  The employee argued that the duty to inquire further required the employer to contact the employee's physician.  The court disagreed.  The FMLA, the court found, prohibited the employer from making direct contact with the employee's health care provider.

Comment:  The decision confirms that employer's are prohibited from directly contacting the health care provider of the employee or the employee's covered family member (depending on who is sick) to determine whether the employee's leave is FMLA-qualifying.  As such, an employer's duty to make further inquiry where it is less than clear from the employee's notice that the leave may be FMLA-qualifying does not require the employer to directly contact the health care provider. 

Section 825.302(c) of the DOL FMLA regulations generally requires employers to "inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought...and obtain the necessary details of the leave to be taken."  (emphasis supplied). 

The Eleventh Circuit covers Alabama, Georgia, and Florida.