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New FMLA Rules Change Medical Certification Procedures

    Client Alerts
  • January 09, 2009

The Department of Labor’s new Family and Medical Leave Act regulations make several important changes for human resource professionals who implement leave requests.  Employers still have the option of requiring medical certification, and the employee still has up to 15 days to provide the requested information.  However, the new rules change procedures when an incomplete or unclear medical certification is returned.

In the event that the employee returns an incomplete form, he or she will have an additional seven calendar days to submit a completed form.  If the employee fails to do so, leave taken before a completed medical certification is provided does not count as job-protected FMLA leave.


Under current FMLA rules, the employer is not allowed to contact the employee’s healthcare provider with questions regarding the certification without that employee’s permission.  Under the new regulations, the employer will be permitted to directly contact the provider without the employee’s consent, to authenticate the form, or to clarify information provided, such as unreadable handwriting.  The employee’s direct supervisor may not be the person contacting the healthcare provider, and the inquiry is limited to clarification of information provided.  In other words, the employer cannot ask questions not presented on the certification form.


The medical certification form has been revised and split into two versions.  One, WH-380 E, will be used to certify the employee’s own serious health condition.  The second form, WH-380-F, certifies the need for (non-military) companion leave.  The new medical certification forms change the information requested from the healthcare provider.  Most importantly, the form now allows the provider to give the employer a specific diagnosis of the employee’s or family member’s medical condition.


Employers should begin using these new procedures and forms as of January 16.