Requiring Medical Evidence: What's Acceptable? (Part I)

By on December 15, 2006 in Current Events with 1 Comment

(Part One)

One of the most difficult issues that can arise when managers are dealing with employee problems involves the evidence an employee must provide to justify an absence. Included in the issue of medical evidence are questions such as:

1. When can a supervisor require medical information?
2. What kind of information can a supervisor require?
3. What form must a requirement to provide information take?
4. Who is qualified to certify that a medical reason for a certain condition or behavior exists?
5. How does a supervisor go about analyzing a medical statement to determine whether it’s responsive to the request or otherwise acceptable?
6. What does a supervisor do if the submitted information is unresponsive or unacceptable in form or otherwise?
7. Once the information is received, how should it be treated? Is the provided information confidential and if so, who may see it?
8. When can a supervisor require or offer a medical examination? Who pays? Who picks the physician?
9. What do third parties such as the Merit Systems Protection Board or the Equal Employment Opportunity Commission have to say about all this?
10. Where is help available for supervisors facing these problems?

In Part One, we’ll deal with questions 1 through 5 and in Part Two, questions 6-10. Please note that this article will not address issues related to workers compensation. I am also saving FMLA for later articles in this series and will discuss it only in passing.

Recently FedSmith published an article examining an MSPB decision in which the Board sustained the removal of an employee for medical inability to perform the job despite the fact that the individual still had a sick leave balance. By the way, that case was nothing new. It represented settled Board case law in existence for a long time. A lot of the comments on the article demonstrated disbelief that such a thing could come to pass and shock at the claimed callousness of the agency taking the action.

If you were one of those who made such a comment, you’re really going to hate this article. Forewarned is forearmed. Continue reading at your own risk.

When can a supervisor require medical information?

By far, the most common circumstance involves the use of sick leave. When an employee advises that he/she will be absent for a period of time due to a legitimate illness or injury and when sick leave abuse is suspected, a supervisor has cause to ask for medical information to support granting sick leave. Keep in mind that supervisors are required to sign to certify the accuracy of time and attendance records. I, for one, wouldn’t sign such a record if I was unsure of its accuracy. Would you? Most agencies (at least those having some common sense) utilize the OPM 71 or a similar form to require employees certify their use of leave and its basis.

Most agency policies and negotiated agreements recognize a grace period of three days of absence before an employee can be required to provide medical justification of an absence. Most of these provisions use qualifiers such as normally, usually and the like. Where cause exists to believe that as little as an hour of sick leave has been improperly requested or used, a manager can require medical justification for the absence regardless of the above language. I have seen a few union contracts that prevented this and management should be ashamed of having signed them.

Other circumstances when medical information may be required include situations in which:

• An employee claims that he/she is physically unable to perform some or all of the duties of the job
• An employee claims to have a disabling condition
• An employee alleges working conditions interfere with his or her ability to perform duties of the position (e.g., irritants, dust, toxins, etc.);
• An employee requests, for medical reasons, special consideration such as assignment to another position or to another duty station, to be excused from night shift work, to be assigned light duty work, to be excused from travel, etc.
• A manager is deciding what can be done to accommodate an employee’s disabling condition
• There may be light duty work an employee is physically capable of performing while recovering from an injury
• An employee claims to be fully recovered from an injury and wants to return to work
• A legitimate question exists whether an employee meets the physical requirements or physical qualifications for a position regardless of the employee’s belief to the contrary
• Evidence exists (police report or other) that the employee has a medical condition that could result in harm to that individual or others
What kind of information can a supervisor require?

Believe it or not the answer to this is quite simple. A supervisor may require an employee provide sufficient information to satisfy a reasonable person that the employee was incapacitated from performing the duties and responsibilities of their position or was undergoing professional examination or treatment during the period of an absence to justify sick leave usage.

An initial letter requesting medical information in the case of suspected leave abuse should require the following:

• A finding that the employee was incapacitated from duty for each and every day of the period for which any type of leave is requested
• Statement of the beginning and ending dates of incapacitation
• It must be on the physician or practitioner’s letterhead or personal prescription pad and signed with an original signature by a physician or practitioner–a stamp is not acceptable
• If the medical certificate is for a medical appointment, it must give the date, time, and location of the appointment.

For the other purposes discussed above, the answer is still simple. The employee may be required to provide sufficient medical information to support their claim or justify a management action. The information required should be tailored to the condition claimed. For example an employee requesting four work weeks of sick leave due to a diagnosis of Angina (chest pain) would likely be asked to provide a physician’s certification that the absence is necessary to the treatment of the illness and whether, at the end of the requested period, the employee is expected to return to full performance.

What form must a requirement to provide information take?

Regarding suspected sick leave abuse, letters should be customized to each situation. I have used letters similar to this.

Regarding other issues, a tailored approach is necessary that addresses the specific nature of the medical condition involved.

The most important principles to remember are:

1. The employee is responsible to provide the medical information.
2. Physicians only know the employees’ take on their job requirements unless you include information about the job for their use.
3. The more specific your request, the more specific information you’ll receive.
4. Get help writing your request. If your agency has a physician available or can make one available to help with drafting such requests, it deserves an A+. If not it deserves an F for failing to support its managers.
5. You know the requirements of a subordinate’s job. Make sure any medical information request is accompanied by a position description and any other information (travel, stress, overtime, conflict, etc., etc.) that the PD may not mention.
Who is qualified to certify that a medical reason for certain condition or behavior exists?

To quote from the Family and Medical Leave Act:

(a) The Act defines “health care provider” as:
(1) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
(2) Any other person determined by the Secretary (OF LABOR) to be capable of providing health care services.
(b) Others “capable of providing health care services” include only:
(1) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;
(2) Nurse practitioners, nurse-midwives and clinical social workers who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
(3) Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement.
(4) Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
(5) A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
(c) The phrase “authorized to practice in the State” as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions without supervision by a doctor or other health care provider.

Now you know. Most agencies would likely adopt the above standard since the Congress and President have, since the one enacted it and the other signed it into law.

The reality is that agencies will generally question diagnoses coming from someone in an unrelated field. For example, a clinical psychologist diagnoses a gastric condition or a family practitioner decides a patient is bipolar. State Board certification and acceptance by a health care insurer (e.g., Blue Cross/Blue Shield) will generally satisfy an Agency. I once was involved in a case in which the individual claimed a psychiatric condition that was diagnosed by a non board-certified graduate of a religious medical school that was not state accredited. Fortunately, this “doctor” dropped out of the game when he found out the employee had misrepresented a number of substantial facts about his background not only to the Agency but to the “doctor” as well.

How does a supervisor go about analyzing a medical statement to determine whether it’s responsive to the request or otherwise acceptable?

Common sense helps. Does the response answer the questions presented? If the claimed illness or injury is relatively straightforward such as a broken leg, a heart attack, an ulcer, etc., and there’s no reason to doubt the employee or doctor, move on. In any event, seek the assistance of staff having experience in such matters. Frequently, people with titles such as employee relations specialist or medical officer can help.

A piece of advice that should not go unheeded: NEVER contact the doctor directly except for the purpose of determining whether the information provided was actually provided by the person who signed it and get your friendly employee relations advisor to do this for you. Usually, the only time an agency will contact a physician on a substantive matter is with the employee’s permission. Most agencies wisely limit these contacts to the Agency’s physician contacting the employee’s physician.

Does this stuff sound complicated? It can be. Stay tuned for Part Two.

As usual, anything resembling an opinion is mine and mine alone.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.


About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.