Under the Family and Medical Leave Act, there are specific questions employers can and cannot ask when an employee requests leave, and the permissible scope widens and narrows at each stage. Employers can verify eligibility, ask enough about the reason and timing to determine whether FMLA applies, and require a medical certification with defined medical facts. They cannot demand a broader diagnosis, probe unrelated conditions, collect family medical history outside a narrow exception, or let a direct supervisor call the treating provider.
Eligibility Questions Are Always Fair Game
Before any medical inquiry, employers can confirm the employee is actually covered. FMLA applies only to employees with at least 12 months of employment, at least 1,250 hours of actual work in the 12 months before leave, and a worksite where the employer has 50 or more employees within a 75-mile radius.1eCFR. 29 CFR 825.110 – Eligible Employee The 12 months don’t have to be consecutive, though breaks longer than seven years generally don’t count.
Employers can ask about these factors or verify them independently through payroll and timekeeping records. If the employee doesn’t qualify, the employer has to notify them in writing within five business days and give at least one specific reason.2eCFR. 29 CFR 825.300 – Employer Notice Requirements One thing to watch: if the employer doesn’t keep accurate records of hours worked, it carries the burden of proving the employee didn’t hit 1,250 hours.
What You Can Ask When Leave Is First Requested
The employee doesn’t have to say the letters “FMLA,” but “I’m sick” by itself isn’t enough. They need to share enough for the employer to recognize that FMLA might apply.3U.S. Department of Labor. How to Talk to Your Employer About Taking Time Off for Family and Medical Reasons When the request is vague, employers can and should ask follow-up questions, and the employee is obligated to respond.4eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
Permissible questions at this stage cover:
- The general reason for leave: whether it involves the employee’s own health condition, care for a family member with a serious health condition, a new child (birth, adoption, or foster placement), or a qualifying need related to a family member’s military deployment.
- When the employee expects to begin leave and how long they anticipate being out.
- Whether the absence relates to a previously certified condition already on file.
For foreseeable leave — a planned surgery, an expected due date — the employee must give at least 30 days’ notice. When the need is unexpected, notice must come as soon as practical.
What the Medical Certification Can Ask
Medical certification is where employers get the most detailed information, and also where most mistakes happen. When leave involves a serious health condition of the employee or a family member, the employer can require a certification completed by the treating provider. The Department of Labor publishes optional forms — WH-380-E for the employee’s own condition and WH-380-F for a family member’s — that map exactly what’s permissible.5eCFR. 29 CFR 825.306 – Content of Medical Certification
The certification can request:
- When the condition started and how long it’s expected to last.
- Relevant medical facts: symptoms, diagnosis, hospitalizations, doctor visits, prescribed medications, referrals for treatment such as physical therapy, or any ongoing treatment regimen. The facts must be sufficient to support the need for leave but don’t need to be exhaustive.
- For the employee’s own condition, whether they can perform their essential job functions, the nature of any work restrictions, and how long those restrictions will last.
- For a family member’s condition, that the family member has a serious health condition requiring care, plus an estimate of how often and how long the employee needs to be absent to provide it.
- For intermittent or reduced-schedule requests, the medical reason the schedule is necessary and the expected frequency and duration of each episode.5eCFR. 29 CFR 825.306 – Content of Medical Certification
The employer should request certification when the employee gives notice or within five business days. The employee then has 15 calendar days to return the form, unless circumstances make that impractical despite good-faith effort.6eCFR. 29 CFR 825.305 – Certification, General Rule Medical offices sometimes charge for completing the paperwork, typically $20 to $35, and that cost falls on the employee unless company policy says otherwise.
Clarifying and Authenticating a Certification
Returned certifications often raise questions. Illegible handwriting, vague responses, or missing fields are common. Employers have two tools, and the rules differ for each.
Authentication means sending the certification back to the provider who signed it and asking them to confirm they completed or authorized it. The employer doesn’t need the employee’s permission. No additional medical information can be requested.7eCFR. 29 CFR 825.307 – Authentication and Clarification of Medical Certification; Second and Third Opinions
Clarification means contacting the provider to decipher handwriting or understand a response. Because that involves accessing medical information, the employer needs the employee’s authorization, generally a HIPAA release. If the employee refuses to authorize and doesn’t clear things up themselves, the employer can deny FMLA leave.7eCFR. 29 CFR 825.307 – Authentication and Clarification of Medical Certification; Second and Third Opinions
In both cases, only an HR professional, leave administrator, management official, or another healthcare provider retained by the employer can make contact. The employee’s direct supervisor is never permitted to do so. And the conversation must stay within the four corners of the certification. No fishing for a broader diagnosis, no asking about unrelated conditions, no requesting information the form doesn’t call for.
Recertification and Return-to-Work Questions
For ongoing or intermittent leave, employers can request recertification no more often than every 30 days, and only in connection with an actual absence. If the original certification states the condition will last longer than 30 days, the employer generally has to wait until that minimum duration expires.8eCFR. 29 CFR 825.308 – Recertifications
Three situations let employers ask sooner:
- The employee asks for more leave than the original certification covers.
- Circumstances change significantly. Absences become more frequent, last longer, or the condition appears more severe than originally described.
- The employer receives information that casts doubt on the stated reason for the absence.8eCFR. 29 CFR 825.308 – Recertifications
Regardless of what the original certification says, employers can always request recertification every six months in connection with an absence, even for lifetime conditions. The employee gets at least 15 calendar days to return it, and the cost falls on the employee. Second or third opinions are not available on a recertification.8eCFR. 29 CFR 825.308 – Recertifications
Before an employee returns from leave taken for their own serious health condition, employers can require a fitness-for-duty certification from the treating provider. The requirement must apply uniformly to similarly situated employees; you can’t demand it selectively.9eCFR. 29 CFR 825.312 – Fitness-for-Duty Certification The default certification is a simple statement that the employee can return to work. If the employer wants the provider to specifically address whether the employee can perform their essential job duties, it must have provided a list of those functions with the designation notice at the start of leave. Without that step, only a general fitness statement is available.
For employees on intermittent or reduced-schedule leave, a fitness-for-duty certification cannot be required after every absence. The limit is once every 30 days, and only when reasonable safety concerns exist based on the condition and job duties. The employee pays for any return-to-work examination, and no second or third opinion is available.9eCFR. 29 CFR 825.312 – Fitness-for-Duty Certification
Questions Employers Cannot Ask
The prohibited areas are where employers most often stumble into liability.
A broader diagnosis than the certification requires. The certification forms ask for relevant medical facts, not a full health profile. If the form provides enough information to establish a serious health condition, employers cannot press for more specifics.
Genetic information or family medical history. The Genetic Information Nondiscrimination Act generally prohibits employers from requesting or requiring genetic information, which includes family medical history, genetic test results, and information about genetic services. There’s one narrow exception: family medical history can be collected through the FMLA certification process when the employee is requesting leave to care for a family member with a serious health condition.10U.S. Equal Employment Opportunity Commission. Genetic Information Discrimination Outside that situation, asking about a family member’s health conditions or medical history violates GINA.11U.S. Department of Labor. The Genetic Information Nondiscrimination Act of 2008: GINA
Medical history unrelated to the current condition. An employee on leave for a back injury doesn’t have to answer questions about diabetes, mental health treatment, or any other condition unrelated to the request. The inquiry is limited to the specific serious health condition at issue.
Direct supervisor contact with the healthcare provider. The employee’s direct supervisor may never contact the treating provider, whatever the reason. Authentication and clarification must go through HR, a leave administrator, or another provider designated by the employer.7eCFR. 29 CFR 825.307 – Authentication and Clarification of Medical Certification; Second and Third Opinions
New medical information during a clarification call. When contacting a provider to clarify a certification, the employer’s representative can’t use the call to gather information beyond what’s already on the form.
Handling the Answers You Receive
Asking correctly doesn’t help if the answers are mishandled. All FMLA-related medical documents — certifications, recertifications, fitness-for-duty statements, and any medical history collected in the process — must go in a confidential medical file separate from the regular personnel file.12eCFR. 29 CFR 825.500 – Recordkeeping Requirements When records contain family medical history or genetic information, GINA’s confidentiality rules also apply. If the employee has a disability covered by the ADA, that law’s confidentiality rules apply on top. In practice, a single separate medical file with restricted access satisfies all three.
One last consequence to keep in view: if a certification is incomplete or insufficient, the employer must tell the employee in writing exactly what’s missing and give at least seven calendar days to fix it.13U.S. Department of Labor. FMLA Frequently Asked Questions After that cure period, if the certification still falls short, FMLA protection can be denied.6eCFR. 29 CFR 825.305 – Certification, General Rule The right to ask carries the obligation to ask cleanly.