When an employee seeks Family and Medical Leave for a serious health condition, the company routinely gives the employee requesting the leave the DOL medical certification form to be completed by their healthcare provider. In several recent circumstances, we discovered that some employers were also requesting medical certification when an employee advised them of the need for FMLA leave for childbirth. This raises questions as to whether employers are permitted to request medical certification of a normal pregnancy as a condition of leave.

The FMLA medical certification rule (29 C.F.R. §825.306) allows employers to seek confirmation in the event that an employee claims a serious health condition. Serious health condition in turn, is defined as an illness, injury, impairment or condition requiring inpatient care. Also under §825.112, leave to give birth and care for a newborn is a separate ground for FMLA leave apart from serious health conditions. The FMLA medical certification form asks whether the qualifying condition is pregnancy, but this appears to be in the context of an incapacitating pregnancy complication.

Based on this analysis, we concluded that employers may not condition granting of FMLA leave for childbirth on the employee’s return of medical certification that she is indeed pregnant. The same analysis would also apply to a father seeking FMLA leave after childbirth. This reasoning would not apply to pregnancy complications, or post-delivery leave to care for a sick infant, both of which fall under the definition of a serious health condition.

How then can an employer confirm that an employee is really pregnant? Our response is why would an employer need this information? In an extremely unusual circumstance where the employee is discovered to have taken the leave for fraudulent purposes, the employer would be entitled to seek reasonable confirmation of the pregnancy and delivery, and could take disciplinary action against an employee found to have falsified this information. However, for purposes of routine pregnancy and childbirth, the employer should simply congratulate the employee, and send the paperwork confirming FMLA leave entitlement.