Keep in mind that medical privacy laws limit the type of information you can require on this certification. The medical certification forms provided by the U.S. Department of Labor (DOL) request medical facts to support the certification, including a diagnosis of a patient or family member’s serious health condition. However, California law prohibits the release of a medical diagnosis supporting certification, unless the patient signs a valid waiver of the right to privacy.

• The Certification of Health Care Provider - Employee’s or Family Member’s Serious Health Condition form is appropriate for use in California. The DOL forms are not appropriate for use for CFRA/FMLA leave. Instead, these forms have been adapted to comply with California law. The Certification of Health Care Provider for PDL, Transfer, And/Or Reasonable Accommodation form is appropriate for employees taking pregnancy disability leave running concurrently with FMLA leave.

• Certification of Health Care Provider - Employee’s or Family Member’s Serious Health Condition
• Certification of Health Care Provider - Employee’s or Family Member’s Serious Health Condition - Spanish
• Certification of Health Care Provider for PDL, Transfer, And/Or Reasonable Accommodation

Medical certification for a family and medical leave purpose means a written communication from the health care provider of the family member or employee with a serious health condition that the health care provider’s patient has a serious health condition.

A “health care provider” is a physician, surgeon, nurse practitioner, nurse-midwife, or other person capable of providing health care services. The health care provider can be licensed either in the United States or in any other country.

FMLA regulations specify that “others capable of providing health care services” include only podiatrists, dentists, clinical psychologists, optometrists and chiropractors.1 Chiropractors are only considered health care providers for purposes of CFRA and FMLA when their work with a patient includes “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.” In other words, to qualify as a health care provider, the chiropractor must take an x-ray of the back, and the x-ray and subsequent treatment must relate to subluxation, i.e., misalignment of the spine. The CFRA regulations follow FMLA’s definition.

Medical Leave for the Employee’s Own Serious Health Condition

As a condition of granting leave, the employer may require certification of the serious health condition.

The certification must not identify the serious health condition, i.e., medical diagnosis, but must contain:

• The date, if known, that the serious health condition came into existence
• The probable duration of the condition
• A statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of the position2

Certification provisions in both the CFRA and FMLA regulations allow employers to ask whether the employee can perform the essential functions of the position and, where applicable, the medical necessity of intermittent leave.3

When the leave is for the employee’s own serious illness or injury, it is recommended that you attach a copy of the employee’s job description to the request for medical information from the health care provider. Alternatively, you can provide a list of the essential functions of the position for the medical provider.

• The employer may not ask the employee to provide additional information (e.g., symptoms, diagnosis, etc.) in the medical certification beyond what is allowed for by the law. The employer is responsible for complying with confidentiality of medical information laws.

Family care leave for the employee’s family member — the certification must not identify the serious health condition involved, but must contain:

• The date, if known, that the serious health condition came into existence.
• The probable duration of the condition.
• An estimate of the amount of time the health care provider believes the employee must care for the family member.
• A statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the the child, parent, spouse or, under CFRA only, registered domestic partner, grandparent, sibling, parent-in-law, or other designated person, including providing psychological comfort and arranging third-party care for the family member and directly providing, or participating in, the medical care.

Qualifying exigency leave — an employee might seek CFRA and/or FMLA leave due to a qualifying exigency relating to a covered military member’s active duty or call to active duty status. An employer can request information supporting the need for this leave. Required information can include a copy of the military member’s covered active duty orders or other documentation from the military showing active duty or impending call to active duty. If leave is needed to meet with a third party, such as to arrange for childcare, the certification can request verifying information. The Certification of Qualifying Exigency for Military Family Leave form is appropriate for use in California.

• Certification of Qualifying Exigency for Military Family Leave

Medical leave for the serious injury or illness of a covered servicemember — one of your employees may request leave under the FMLA to care for a covered servicemember. Different information is needed depending on whether the request is for a current servicemember or for a veteran. The Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave Under the Family and Medical Leave Act and the Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Under the Family and Medical Leave Act forms are appropriate for use in California.

• Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave Under the Family and Medical Leave Act
• Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Under the Family and Medical Leave Act

The list of health care providers that may complete a certification for covered servicemembers includes:

• A United States Department of Veterans Affairs (“VA”) health care provider
• A Department of Defense (DOD) TRICARE network authorized private health care provider
• A DOD non-network TRICARE authorized private health care provider
• A health care provider as defined for other types of FMLA leave (such as leave to care for one’s own serious health condition)

Timeliness of Medical Certification

You can require the employee to provide medical certification within no less than 15 calendar days of the employer’s request for certification. However, if it is not possible for the employee to do so despite good-faith efforts, the leave can begin before you receive the certification.

Absent extenuating circumstances, such as the health care provider being unavailable, failure to return the certification in a timely manner can result in denial of FMLA/CFRA protections following the expiration of the 15-day time period until a sufficient certification is provided. If the employee never provides the certification, the leave is not protected family and medical leave.

• At the time you request certification, you need to advise the employee of the consequences that will occur if the employee fails to provide adequate certification.

You may terminate an employee who refuses to provide the required medical certification and remains absent from work. Apply a consistent process in dealing with unauthorized absences from work.4 Consider consultation with legal counsel before disciplining an employee in this situation.

If additional leave is requested at the end of the period that the health care provider originally estimated the employee needed for family leave, you can require the employee to obtain recertification.

Validity of Medical Certification

Under CFRA regulations, an employer can never ask an employee for a diagnosis of the employee’s serious health condition or that of a family member.5

• Both FMLA and CFRA regulations provide that an employer may contact a health care provider to authenticate a medical certification but for no other reason, including requesting additional medical information.6

FMLA regulations authorize employers to get second and third medical opinions about the serious health condition of a family member.7 However, California law does not allow you to request more information even if you doubt the validity of the medical certification for an employee needed to care for a family member. You must accept the certification.

• Employers should not request second and third medical opinions for leave to care for family members if the leave is CFRA or FMLA/CFRA.

If you have good faith, objective reasons to doubt the validity of the medical certification for an employee taking leave for the employee’s own serious health condition, California law permits an employer to require the employee to obtain the opinion of a second health care provider about any information in the certification. You can designate or approve the second provider. You must bear the expense of obtaining the second opinion. However, you cannot designate a health care provider that you employ on a regular basis. And, the employer may not ask the employee to provide additional information in the medical certification not allowed by the CFRA regulations, such as the patient’s diagnosis.

If the second opinion differs from the opinion in the original certification, you can require, at your expense, that the employee obtain the opinion of a third health care provider about any information in the certification. You and the employee jointly designate or approve the third provider. The third health care provider’s opinion is final and is binding to both you and the employee.

• However, a recent Ninth Circuit Court of Appeal decision clarifies that while an employer has the option to seek additional medical opinions, the FMLA does not require an employer to obtain additional medical opinions before contesting the validity of an employee's medical certification. Additionally, the court held that an employer may rely on non-medical evidence to contest an employee's medical certification.8

• Remember that any medical information you receive is covered by confidentiality laws. Retain this information in a confidential medical file separate from the employee’s regular personnel file. See Keeping Medical Information Private for more information.

1. 29 CFR sec. 825.125(b); 2 CCR sec. 11087

2. 2 CCR secs. 11087(a)(2) and 11097

3. 29 CFR sec. 825.306(a); 2 CCR secs. 11087(a)(2) and 11097

4. Bailey v. Southwest Gas Company, 275 F.3d 1181 (9th Cir. 2002)

5. 2 CCR secs. 11091(b)(2)(A)(1), 11097

6. 29 CFR sec. 825.307(a); 2 CCR secs. 11091 (b)(1) - (2)

7. 29 CFR sec. 825.307

8. Perez v. Barrick Goldstrike Mines, Inc., No. 23-15043 (June 28, 2024)