There must be something in the water in EmployerLand, USA.
On multiple occasions lately, employers have confessed frustration to me with the lack of information provided by an employee’s physician in an FMLA medical certification or in support of an ADA accommodation.
But their next line is always troubling: “So, Jeff, I just picked up the phone and called the doctor directly with a few of our questions about the form.”
[Cringe]
Friends, whether it’s an FMLA or ADA situation, employers must follow very specific rules when communicating directly with an employee’s physician about the employee’s medical condition. They start with these:
- Employers may communicate directly with the physician only with the employee’s express permission.
- The scope of the information sought must specifically relate to the leave of absence or accommodation requested.
Let’s take a look how this issue arises under both the FMLA and ADA.
FMLA
The FMLA regulations contain a specific process employers must follow before communicating directly with a physician. Where the medical certification does not sufficiently answer the questions posed or the health care provider’s responses tend to raise doubt, employers should immediately communicate with the employee to “cure” the deficiencies and/or shed light on any suspect information provided in the form. In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies. Here, you might consider asking questions that probe further into the information you find particularly suspect.
Upon your request, the employee has a choice — either provide sufficient information from the health care provider or give you permission to contact the physician directly.
If the employee decides to “cure” the certification himself, and the cure still does not provide the information necessary to either grant or deny FMLA leave, then the employer has the option to seek a conversation with the employee’s physician. To be clear: you must have the employee’s permission — with a HIPAA compliant release — to contact the employee’s health care provider in these instances.
ADA
The EEOC’s guidance on communicating directly with a physician is far less clear, but employers are expected to obtain the employee’s consent to contact the health care provider when making medical inquiries.
In its Guidance on Disability-Related Inquiries, EEOC cautions that:
- Any medical inquiry must be job-related and consistent with business necessity.
- The scope of the inquiry must be limited to what is necessary to determine the employee’s ability to perform essential job functions or to assess the need for a reasonable accommodation.
- The employee must authorize any direct communication with their healthcare provider.
The conundrum over whether to contact the physician often arises when the employee requests an accommodation, appears unfit for duty, or provides vague/non-responsive information from a physician. In these situations, a couple of key points to keep in mind:
- As an initial matter, since a physician cannot disclose information about a patient without his/her permission, an employer must obtain a release from the employee that will permit the doctor to answer questions. The release should also be clear as to what information will be requested.
- Where documentation supporting an accommodation request or fitness for duty is insufficient, EEOC counsels in its Guidance on Medical Inquiries that employers should consider communicating first with the employee’s physician — with the employee’s consent — before making accommodation decisions or sending the employee to an independent medical provider. (See answer to Question 11 in the Guidance).
Please note: I make reference to using a “HIPAA-complaint release” above not because the employer necessarily needs to worry about HIPAA. To be clear, HIPAA does not implicate the medical information exchanged between employer and employee. Within the confines of your confidentiality obligations under FMLA and ADA, employers clearly have the right know why their employee can’t report to work or needs an ADA accommodation. However, the employee’s physician is obligated under HIPAA and prohibited from disclosing protected health information without valid authorization. Therefore, a HIPAA-compliant release is functionally necessary for the employer to obtain this medical information.
What if the Employee Fails to Cooperate?
What if the employee fails to provide responsive medical certification and refuses to allow communication between the employer and physician?
Simply put, the employee suffers the consequences.
Take this court decision from just a couple weeks ago. In Tarquinio v. Johns Hopkins University Applied Physics Lab, the Fourth Circuit Court of Appeals upheld the dismissal of Sally Tarquinio’s ADA lawsuit after she refused to provide documentation in support of her accommodation request and refusal to allow the employer to communicate directly with her physician.
Sally, an engineer with a history of Lyme disease, requested a medical exemption from the lab’s COVID-19 vaccine mandate, citing “Lyme-induced immune dysregulation.” However, she refused to allow the lab to consult her doctors or provide sufficient medical documentation. As a result, the lab denied her exemption and terminated her employment when she remained unvaccinated. The court determined that, because Sally obstructed the lab’s ability to assess her condition, she failed to establish a valid ADA claim.
ADA claims dismissed.
And all is right with the world again . . .