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.