Physician Charges $15 to Complete FMLA Papers

One of our employees recently had an experience at a local surgeons office. The employee is in need of surgery and would need to be off work for 3-5 days. We provided FMLA paperwork for the employee to take to and have the physician complete. The employee was informed by the physicians office that there is a $15 to complete FMLA papers. The employee has now asked that we provide reimbursement for the $15 fee that the physician has charged. 1) Is it appropriate for the physicians office to charge $15 to complete FMLA papers? 2) Should we reimburse the employee since we require the FMLA papers to be completed by the physician?

1 answer  |  asked Nov 21, 2007 07:36 AM [EST]  |  applies to Ohio

Answers (1)

Neil Klingshirn
The FMLA regulations do not require the employer to pay for the Employee's Certification

This is a good question and it does not have a clear answer. It does not have a clear answer because the FMLA and the regulations that implemented it do not spell out the physician's obligations. They only cover the obligations of the employer and the employee.

The certification obligations are found at 29 CFR 825.305 through 29 CFR 825.307. If you google those terms, it is helpful to read the regulations.

To preview, they allow the employer to require a physician certification. They do not say who has to pay for it. Presumably, that is a charge that the employee would be responsible for paying. The employer then has the right to seek a second opinion and even a third opinion, if needed. The regulations require the employer to pay for the second and third opinion and to pay the employee's out of pocket cost for obtaining the second and third opinion.

Thus, the regulations appear to require the employee to pay for the first opinion, even though the employer requires it. However, since most doctors, to my knowledge, have not charged such a fee, I am not aware of any cases that definitively decide the issue.

Given this, but depending on how often the issue comes up, it might make sense to cover the $15 cost to avoid the risk of litigation. That risk is three fold. First, the employee might file suit to recover the $15. Unlikely, but stranger things have happened. More troublesome, the employee could claim that forcing him or her to pay it is a form of retaliation or interference with their FMLA rights. Most troublesome, if a court decides that the employer interfered with FMLA rights, it could go further and find that the employer's failure to restore an employee for failure to have the medical certification is invalid. Thus, in this case, an ounce of prevention may be worth a pound of cure, at least until the courts clarify this issue.

Best regards,


posted by Neil Klingshirn  |  Nov 21, 2007 11:30 AM [EST]

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