Privacy Issues in the Community College Workplace

d. Recertification Under the CFRA , the employer may require that the employee obtain subsequent recertification regarding the employee’s serious health condition if additional leave is required. 189 Furthermore, upon the expiration of the time estimated by the health care provider to be necessary for the care of a parent, spouse, domestic partner or child, the employer may require the employee to obtain recertification. 190 Under the FMLA , recertification may be required on a “reasonable basis.” According to federal regulations, unless “the employer receives information that casts doubt upon the employee’s stated reason for the absence” or “circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of absences, the severity of the condition, complications),” it is unreasonable to request recertification more often than every 30 days (or, if the length of leave specified in the original certification was greater than 30 days, prior to the expiration of the original leave). 191 e. Getting a Second Opinion Under both the FMLA and CFRA, if an employer doubts the validity of a certification provided by an employee, the employer may require, at the employer’s expense, that the employee obtain the opinion of a second health care provider of the employer’s choosing. 192

Please note: The health care provider may not be employed by the employer (e.g., a county should not send an employee to its own health department to get a second opinion). 193 If the second opinion differs from the first opinion, the employer may require, again at the employer’s expense, that the employee obtain an opinion from a third health care provider designated or jointly approved by the employer and the employee. 194

The third opinion is binding on the employer and the employee. 195

f. Certification of an Employee’s Ability to Return to Work Absent a contrary position in a memorandum of understanding (or collective bargaining agreement), an employer may have a uniformly applied practice or policy that requires an employee to obtain certification from his or her health care provider that the employee is able to resume work if the employee is returning from leave taken as a result of his or her own serious health condition. 196 State law allows an employer to condition an employee’s return to work from his or her own serious health condition upon a return to work certification only if the employer has a uniformly applied practice or policy of requiring such releases from all employees who return to work from illness, injury or disability. 197

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 62