Can California Employers Use the New FMLA Certifications of Health Care Provider Forms? | Fox Rothschild LLP



As you may have heard, the Federal Department of Labor has issued new Health Care Provider Certification forms for an employee’s serious medical condition (WH-380-E) and take care of a family member (WH-380-F).

These forms are important in justifying an employee’s request for FMLA and provide much more information than a simple doctor’s note. If you don’t require employees to complete these forms for each FMLA leave, you should.

But can California employers use federal forms? The answer is yes, BUT with the following clarifications:

  • In California, you are not allowed to obtain the underlying diagnosis, illness, disability, or physical / mental condition. It is because of our state’s constitutional right to privacy. It is therefore useful to clarify that health care providers should not disclose this patient information (or genetic information, which is also protected by California law).
  • The forms only refer to FMLA, but California also has the California Family Rights Act (CFRA), so be sure to clarify that any leave granted in California is FMLA / CFRA, not just FMLA.
  • The forms do not specifically refer to California disability leave during pregnancy laws, so again, be sure to clarify that any overlap in leave is properly designated.

You can certainly modify the federal forms to solve these problems, or clarify them in another document.

Many thanks to Liku Madoshi for his thorough evaluation of the federal certification forms taking into account California issues.

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