Employer's right to information from physician

I am currently on intermittent FMLA and am required to provide a doctor's excuse every time I use any accrued time for my condition, even if I only use 30 minutes. Is this within the regulations of FMLA? Also, my employer has contacted my physician asking for times and dates that I have contacted him. Do they have a right to this information? Thank you.

1 answer  |  asked Aug 16, 2013 10:41 PM [EST]  |  applies to Illinois

Answers (1)

Neil Klingshirn
Generally speaking, under the FMLA, an employer cannot require a "doctors excuse." Rather, an employer can require a medical certification from your doctor of your need for leave, its duration and expected timing. Search the web for a form called WH-380, which contains the information that an employer is entitled to get.

An employer can require a medical certification once, at the beginning of your leave, and then after that, no more employer can require a new certification no more frequently than every 30 days, unless:

(1) You request an extension of leave;

(2) Circumstances described by the previous certification have changed significantly ( e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). or

(3) Your employer receives information that casts doubt upon your stated reason for the absence or the continuing validity of the certification.

For more on certification and recertification, search for 29 cfr 825.305 to 825.308.

If your employer offers paid time off or similar benefits in connection with your leave, then the employer can require a doctor's excuse or other information as a condition of your receipt of that benefit. If you choose not to apply for or accept that benefit, though, then you would not need to comply with the employer's requirements for medical excuses (apart from permissible certifications), and the employer could not deny or interfere with your FMLA leave because of such refusal.

Finally, your employer can only contact your physician to authenticate your certification (that is, verify that the doctor provided it) or to clarify what the doctor wrote (e.g., to explain illegible handwriting or a medical term). If your employer is calling your doctor and obtaining personal medical information, consider consulting an employment lawyer in Illinois regarding your FMLA rights and your rights to privacy.

posted by Neil Klingshirn  |  Aug 19, 2013 06:47 AM [EST]

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