The Essential Guide to Family & Medical Leave

154 | the essential guide to family and medical leave
• a statement that the employee is unable to perform the functions of his
or her job (if the employee is taking leave for his or her own condition)
or that the employee’s family member needs care (if the employee is
taking leave for a family member’s condition).
If the employee needs intermittent or reduced-schedule leave, the
certification must also state that intermittent leave is necessary; the expected
duration of the leave; and, if intermittent leave is required for planned
medical treatment, the dates and duration of such treatment. Of course,
intermittent leave by its very nature may include unforeseeable absences—
for example, because a chronic condition flares up unexpectedly or a
permanent condition (such as cancer) takes a turn for the worse. Although
your company can ask for the dates of scheduled treatment, it cannot require
an employee to provide a firm schedule for intermittent leave that is less
predictable.
The Department of Labor has created a medical certification form,
“Certification of Health Care Provider” (Form WH-380), which employers
can use to gather this information. (You can find a blank copy of the form
in Appendix C.) The form is designed to be handed to employees, who can
then ask their health care providers to complete and sign it. Using this form
is optional, but if you develop your own form instead, you cannot ask for
more information than Form WH-380 requests.
Caution
State law may prohibit you from using Form WH-380. Some states have
strict laws that protect the privacy of medical records. If your state’s law
prohibits employers from requesting certain types of medical information,
you must adhere to those restrictions—even if the FMLA allows you
to have that information. And, because Form WH-380 asks the health
care provider to give details about the employee’s or family member’s
serious health condition, you may not be able to use that form in certain
states (California, for one). Before you adopt Form WH-380 or any other
medical certification form, talk to a knowledgeable employment lawyer
in your state to make sure that it doesn’t violate your employees’ medical
privacy rights.