Let’s set the scene. An employee comes into work and provides medical paperwork to their manager or the human resources department. Sound familiar? It could be Family and Medical Leave Act (“FMLA”) certification paperwork, or a doctor’s note related to an Americans with Disabilities Act (“ADA”) situation.

Upon review, human resources notices that the medical certification or doctor’s note does not fully answer the questions posed, the health care provider’s responses tend to raise doubt (such as conflicting dates, inconsistent handwriting, etc.), or the information is vague or non-responsive. What should the employer do with this?

Should You Call the Doctor?

Many employers believe they should call the doctor to get clarification. However, both the FMLA and the ADA have very specific rules regarding employer contact with an employee’s doctor about the employee’s medical condition.

Navigating Communication with the Doctor

Two general rules that apply under both FMLA and ADA:

1. Employers may only contact the doctor if they have the employee’s express permission; and
2. The scope of the information sought must specifically relate to the leave of absence or accommodation request.

In addition to these rules, FMLA and ADA also have other specific procedures that must be followed.

Communicating with the Doctor under the ADA

The EEOC has provided guidance regarding an employer communicating directly with an employee’s doctor; however, the process is not as black and white as it is under the FMLA.

Under the guidance, though, it is clear that an employer has an obligation to obtain an employee’s consent to make direct contact with the employee’s doctor in relation to medical inquiries. This consent should include the employee completing a HIPAA-compliant release.

The EEOC notes a couple of things for employers to keep in mind. First, any medical inquiry must be job-related and consistent with business necessity, and the scope of the employer’s inquiry must be limited to information necessary to determine the employee’s ability to perform the essential functions of the job or to weigh the need for a reasonable accommodation.

Second, in situations where the employee (1) has requested a reasonable accommodation, (2) appears to potentially be unfit for duty, or (3) the information from the doctor is vague or unresponsive, a release from the employee must be obtained prior to contacting the doctor, and the release should be clear on what information the employer is requesting.

Additionally, if the documentation for the accommodation request or the fitness for duty examination is insufficient, the EEOC advises employers to communicate with the employee’s doctor before making a decision regarding the accommodation or sending the employee to an independent medical provider.

Communicating with the Doctor under FMLA

As is typical with FMLA, the law has a set process that employees must follow before communicating directly with an employee’s doctor.

Under the regulations, if a medical certification does not adequately answer the questions posed or the health care provider’s responses tend to raise doubt, the employer needs to speak with the employee to address the deficiencies and/or shed light on any dubious information noted on the certification.  In the communication to the employee, an employer should list the unanswered or incomplete questions and provide a deadline of at least seven (7) calendar days to cure the deficiencies.

If an employer finds certain information particularly suspect, the employer can use this as an opportunity to ask questions that inquire further into the suspected information. 

At this point, the employee has two options. The employee can either take it upon themselves to obtain sufficient information from their doctor, or they can authorize the employer to contact the doctor directly.

If the employee decides to cure the certification themselves and the cure fails to provide the necessary information for the employer to either grant or deny FMLA leave, at that point, the employer can have a direct conversation with the employee’s doctor. However, the employer needs to keep in mind that they must have the employee’s express permission along with a HIPAA-compliant release, anytime the employer directly contacts the employee’s doctor.

So, what happens if an employee does not cooperate with the processes noted above?

In situations where employees fail to cooperate by obtaining responsive documentation and also refuse to provide authorization for the employer to contact their doctor, the employee does not receive the protections provided under the ADA or FMLA.

Best Practices for Compliance

It might seem easiest to call the healthcare provider for clarification, but FMLA and ADA require employers to get the employee’s consent first and follow strict limits on what they ask. Following these rules isn’t just a legal requirement—it’s also a best practice. It protects both the employer and the employee, ensuring a fair and legally compliant process when managing medical leave and accommodations.

By: Cara Sheehan, Esq.

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