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Can I Get Some Clarification on That Certification? Maybe Not … Differences Between FMLA and CFRA

Under the Family and Medical Leave Act (“FMLA”), an employer is permitted to contact an employee’s healthcare provider, with the employee’s permission, to clarify a medical certification submitted in support of the employee’s request for a leave of absence. Under the FMLA, “clarify” means to understand the handwriting on the certification or the meaning of a healthcare provider’s response contained in the certification.  “Clarify” does not mean obtaining a better understanding of a vague, ambiguous, or incomplete certification.  For that, an employee must sign an employer’s written notice of the “deficiency” and allow the employee at least seven calendar days to cure any deficiency.  Moreover, an employer may not ask the healthcare provider for any information beyond that which is on the certification form.

California law is far more restrictive and does not allow an employer to contact an employee’s healthcare provider to “clarify” a certification for a leave of absence under the California Family Rights Act (“CFRA”). Therefore, when presented with a medical certification for a leave of absence when an FMLA and CFRA leave run concurrently, the CFRA’s less permissive rules apply and an employer should not contact the employee’s healthcare provider for “clarification” of the certification. An employer may, however, ask employees to cure deficiencies in certifications and insist upon receiving a complete and sufficient medical certification.

Jackson Lewis P.C. © 2017

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About this Author

Jennifer B. Hodur, Jackson Lewis, retaliation lawyer, wrongful termination attorney
Of Counsel

Jennifer Hodur is a Of Counsel in the Los Angeles, California, office of Jackson Lewis P.C. Her practice is focused on employment litigation on behalf of management, as well as advice and counsel on all employment issues.

Ms. Hodur has litigated cases in both state and federal courts, as well as before state administrative agencies, involving a wide variety of employment law, including harassment, discrimination, retaliation, wrongful termination, wage and hour, breach of employment contract, fraud, and trade secret cases....

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