As you may have heard, the federal Department of Labor has issued new Certification of Health Care Provider forms for an employee’s own serious health condition (WH-380-E) and to care for a family member (WH-380-F).
These forms are important to justify 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 every FMLA leave, you should.
But can California employers use the federal forms? The answer is yes, BUT with the following clarifications:
- In California you are not allowed to obtain the underlying diagnosis, illness, impairment, or physical/mental condition. This is because of our state’s Constitutional right to privacy. So, it helps to clarify that the health care providers should not disclose such patient information (or genetic information, which is also protected under California law).
- The forms only reference FMLA, but California also has the California Family Rights Act (CFRA), so make sure to clarify that any leave granted in California is FMLA/CFRA, and not just FMLA.
- The forms do not specifically reference California’s Pregnancy Disability Leave laws, so again, make sure to clarify that any overlap in leaves is properly designated.
You can certainly amend the federal forms to address these issues, or clarify them in another document.
Many thanks to Liku Madoshi for her thoughtful evaluation of the federal certification forms with California issues in mind.