HIPAA's Potential Impact on FMLA Certification


The Family and Medical Leave Act ("FMLA") entitles eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons. These medical reasons include the "serious health condition" of an employee's spouse, child, or parent, or the "serious health condition" of the employee that prevents him/her from performing the essential functions of their job.

In order to assess whether a covered individual has a "serious health condition", an employer can require sufficient medical information to support an employee's request for FML. However, the Health Insurance Portability and Accountability Act ("HIPAA") generally restricts a healthcare provider from divulging protected health information ("PHI") of their patients to third-parties, including employers. This article provides tips for maneuvering through the potential conflicts between these two statutes.

The Department of Labor ("DOL") prescribes FMLA certification forms to verify the existence of a "serious health condition". To be sufficient, a medical certification should state the following: the date the condition commenced; the probable duration of the condition; appropriate medical facts regarding the condition; a statement that the employee is needed to care for a covered family member or a statement that the employee is unable to perform the essential functions of his or her position; dates and duration of any planned treatment; a statement of the medical necessity for intermittent leave or leave on a reduced schedule; and expected duration of such leave.

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