Stop! Why Employers Should Put the Physician Call on Hold

It’s a common scenario in HR: an employee submits an FMLA medical certification that is vague, incomplete, or frankly, suspicious. Your first instinct might be to pick up the phone and call the doctor directly to get some “real” answers. However, you need to put that phone back on the hook.

Under FMLA and ADA regulations, there is a very specific process for communicating with a healthcare provider. Jumping the gun can lead to privacy violations and costly litigation.

The FMLA “Cure” Process

The FMLA regulations are clear that if a certification is insufficient, the employer must first give the employee a chance to “cure” the deficiency. You must provide a written notice specifically listing what information is missing and give the employee at least seven calendar days to fix it. Only after the employee fails to provide a sufficient certification can you consider direct contact.

Even if the cure process fails, you cannot simply dial the doctor’s office. You must have the employee’s express permission and a HIPAA-compliant release to speak with their physician. While HIPAA doesn’t apply to employers directly, it does apply to the doctor. Without that release, the physician is legally prohibited from sharing protected health information with you.

Under the Americans with Disabilities Act (ADA), the EEOC’s guidance is slightly less rigid but still emphasizes caution. Any inquiry must be “job-related and consistent with business necessity.” The scope must be limited to the employee’s ability to perform essential functions or the need for an accommodation.

And if the Employee Refuses? The power remains with the employer if the employee fails to cooperate. If an employee refuses to “cure” a certification or denies you permission to contact their doctor, they must bear the consequences. This often means the FMLA leave or ADA accommodation can be legally denied because the employee failed to provide the necessary medical documentation.

By following the “notice and cure” steps and obtaining proper authorizations, you protect the company from liability while ensuring you get the information you need to manage your workforce effectively. Any questions? Contact us here.

FAQs

1: Can HR contact an employee’s doctor directly about FMLA paperwork?
Not immediately. Under the FMLA, employers must first give the employee an opportunity to correct or “cure” incomplete or insufficient medical certifications. Direct contact with a healthcare provider generally requires the employee’s permission and a HIPAA-compliant release.

2: What happens if an employee refuses to provide updated medical documentation or authorize provider communication?
If an employee fails to cooperate with the certification process or refuses to provide necessary documentation, the employer may legally deny the requested FMLA leave or ADA accommodation due to insufficient medical support.