Employers Beware of Conflicting Documentation Requirements for Medical Leave Under Cornavirus Laws

June 15, 2020

By: Colin A. Walker

The outbreak of the Cornavirus has prompted lawmakers to pass numerous laws at the federal, state and local level to address the situation. Unfortunately, in the rush to address the pandemic, it appears that legislators have not employed the care and discretion that we have come to expect from them. In particular, the new laws muddy the waters on an already confusing subject: documentation regarding medical leave.  

If an employee requests medical leave, what can the employer do to verify that the reasons for the leave are legitimate? Under the Family Medical Leave Act (FMLA), the employer may ask the employee to provide a medical certification, a document filled out by the medical provider explaining the need for leave. If the employee provides a medical certification which is ambiguous or insufficient, the employer may ask the employee to clear up the ambiguity or correct the deficiency and the employee must do so within seven days. If the employee fails to do so, the employee is not entitled the leave. If the employee does provide the medical certification, then the employer may contact the health care provider for purposes of authenticating the certification; it may not request any additional medical information. (The employer may also require the employee to submit to a medical examination by a healthcare provider chosen by the employer, at the employer’s expense.) If the certification is not authenticated, it does not have to be accepted by the employer and, again, the leave is not protected.

However, under the Colorado Health Emergency Leave with Pay (HELP) Rules, the employer may not require an employee to provide documentation while the employee is sick and the employer may not require the healthcare provider to provide documents to the employer directly. The employer may require the employee to provide certain documentation but only after the employee is no longer sick and after the employee has been cleared to return to work. Documentation may not be required as a condition of taking leave.

Under the Families First Coronavirus Response Act (FFCRA), an employer may require an employee requesting leave to provide documentation, including a doctor’s note. However, the EEOC has issued guidance encouraging employers to use other methods of verifying the need for leave to reduce the burden on healthcare providers who are already stressed.

So, riddle me this Batman: If an employee tells an employer in Colorado that he/she needs leave because he/she has Coronavirus-like symptoms and is seeking treatment, can the employer require a medical certification? The answer is: yes, but only after the employee is no longer ill, not as a condition of taking leave, and the employer may not require the healthcare provider to provide the documentation. This is required by the HELP Rules. As can readily be seen, this is substantially different from the procedures under the FMLA and FFCRA.  

The moral of the story is that employers need to be careful, and consult competent employment law counsel to make sure they understand the interplay between the various laws to make correct decisions when an employee requests medical leave related to the Coronavirus.