Let’s put our heads together on this one. You see, it appears as though far too many employees have bought into the notion that their employer is always responsible for the cost of obtaining medical certification to support an FMLA-related absence. Case in point: just last week, a client called me for help after one of her employees simply refused to return medical certification because she didn’t want to foot the $50 bill quoted by her physician for completing the certification form. She firmly believed her employer should pick up the tab.
Your employee is wrong. Dead wrong.
Let’s start with the FMLA regulations, which make clear that the employee is solely responsible for obtaining medical certification. If you don’t believe me, here is the language:
It is the employee’s responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee’s family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee’s FMLA request. 29 C.F.R. § 825.305(d)
Going further, the regulations even state explicitly that “any recertification requested by the employer shall be at the employee’s expense unless the employer provides otherwise.” 29 C.F.R. § 825.308(f).
Other DOL publications are just as explicit about the employee’s obligation to pay for his/her own medical certification. In its Employee Guide to the Family and Medical Leave Act (pdf), the DOL reminds employees that they alone are “responsible for the cost of getting the certification . . . and for making sure that the certification is provided to your employer.”
Notably, this requirement also is outlined by the DOL in DOL Fact Sheet #28G (pdf), the relevant portion of which I’ve highlighted in yellow.
The DOL Guide and Fact Sheet can be extremely helpful to employers in impressing upon employees the obligations they have under the FMLA to cooperate with the medical certification process.
That said, employers, let’s not get too cocky. The above applies to FMLA medical certification. If the employer requires the employee to be examined by a physician chosen by the employer, the EEOC cautions that it is the employer’s responsibility to pay all costs associated with the examination. Keep in mind, too, that a number of states also have very specific statutes that require the employer to pay the cost of a medical examination where the exam is required as a condition of employment. In short, where FMLA is not involved, tread very carefully. And call your favorite employment attorney before making the decision.