Current through Register Vol. 56, No. 18, September 16, 2024
(a) An employer may
require an employee who requests family leave to sign a form of certification
attesting that such employee is taking family leave in connection with the birth of
a child or the placement of a child with the employee for adoption or foster care;
to care for a family member because of that family member's serious health
condition; or to care for a family member because of an epidemic of a communicable
disease, a known or suspected exposure to a communicable disease, or efforts to
prevent spread of a communicable disease, whichever is applicable. Any employee who
refuses to sign such certification may be denied the requested leave. The employer
may not require the employee to sign or otherwise submit a form of certification
attesting to additional facts, including the employee's eligibility for family
leave.
1. An employer may subject an employee to
reasonable disciplinary measures, depending on the circumstances, when an employee
intentionally misrepresents that such employee is taking family leave in connection
with the birth of a child, or the placement of a child with the employee for
adoption or foster care; to care for a family member because of that family member's
serious health condition; or to care for a family member because of an epidemic of a
communicable disease, a known or suspected exposure to a communicable disease, or
efforts to prevent spread of a communicable disease, whichever is applicable. The
form of certification established by the employer shall contain a statement warning
the employee of the consequences of refusing to sign the certification or falsely
certifying.
(b) An employer
may require that any period of family leave for a serious health condition of a
family member or for the birth or placement of a child with the employee for
adoption or foster care be supported by certification issued by a health care
provider, as described at (b)1 and 2 below, or where the leave is for an epidemic of
a communicable disease, a known or suspected exposure to a communicable disease, or
efforts to prevent spread of a communicable disease, certification issued by a
school, place of care for children, public health authority, public official, or
health care provider, as described at (b)3 below.
1. Where the certification is for the serious
health condition of a family member of the employee, the certification shall be
sufficient if it states the approximate date on which the serious health condition
commenced, the probable duration of the condition and the medical facts within the
provider's knowledge showing that the family member's health condition meets the
criteria of a serious health condition. In any case in which the employer has reason
to doubt the validity of the certification provided, the employer may require, at
its own expense, that an employee obtain an opinion regarding the serious health
condition from a second health care provider designated or approved, but not
employed on a regular basis, by the employer. If the second opinion differs from the
certification provided, the employer may require, at its own expense, that the
employee obtain the opinion of a third health care provider designated or approved
jointly by the employer and the employee concerning the serious health condition.
The opinion of the third health care provider shall be considered to be final and
shall be binding on the employer and the employee.
2. Where the certification is for the birth or
placement of a child with the employee for adoption or foster care, the
certification need only state the date of birth or date of placement, whichever is
appropriate.
3. Where the certification
is for an epidemic of a communicable disease, a known or suspected exposure to the
communicable disease, or efforts to prevent spread of the communicable disease, the
certification shall be sufficient if it includes:
i. For leave taken to provide in-home care or
treatment of a child due to the closure of the school or place of care of the child
of the employee, by order of a public official due to the epidemic or other public
health emergency, the date on which the closure of the school or place of care of
the child of the employee commenced, and the reason for such closure;
ii. For leave taken due to a public health
authority's issuance of a determination requiring or imposing responsive or
prophylactic measures as a result of illness caused by an epidemic of a communicable
disease or known or suspected exposure to the communicable disease because the
presence in the community of a family member in need of care by the employee would
jeopardize the health of others, the date of issuance of the determination and the
probable duration of the determination; or
iii. For leave taken because a health care
provider or public health authority recommends that a family member in need of care
by the employee voluntarily undergo self-quarantine as a result of suspected
exposure to a communicable disease because the presence in the community of that
family member in need of care by the employee would jeopardize the health of others,
the date of the recommendation, the probable duration of the condition, and medical
or other facts within the health care provider or public health authority's
knowledge regarding the condition.
(c) An employer shall not use the certification
requirements provided in (a) and (b) above to intimidate, harass or otherwise
discourage an employee from requesting or taking family leave or asserting any of
the employee's rights to family leave under these regulations or the Act.
