What can HR ask my doctor about my FMLA?

My HR manager contacted my doctor’s office to find out if I had been there to get my FMLA papers filled out then asked about my appointments and why I was there during appointments. Is this legal?

Ann Kiernan replies:

Federal regulations do allow employers to contact the physician’s office to verify that the information contained on the certification form was completed and/or authorized by the doctor who signed the certification. FMLA regulations also allow employers to ask the doctor’s office to decipher the handwriting on the medical certification or for help in understanding the meaning of a response. But, importantly, employers may not ask health care providers for additional information beyond that required by the certification form. See: 29 C.F.R. §825.307(a). However, as part of the information allowed to be obtained on FMLA recertification, the employer can send the doctor a record of the employee’s absence pattern and ask whether the serious health condition and need for leave is consistent with such a pattern. 29 C.F.R. §825.308(d)

So, if HR simply asked whether you had been to the doctor’s office when you said you were, and asked whether you were being treated for the condition you said you were, and verified that the doctor’s office had in fact filled out the certification you submitted, that’s OK. But if HR pried further into your diagnosis, prognosis or treatment, or asked for information not called for on the FMLA forms, that’s a violation.

If you believe that your rights under the FMLA have been violated, you can file a complaint with the US Department of Labor, Wage and Hour Division, or file a private lawsuit against your employer in court.

Posted 08-08-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.