The federal Department of Labor has issued new Certification of Health Care Provider forms for an employee’s own serious health condition (WH-380-E) and to care for a family member (WH-380-F).

These forms are important to justify an employee’s request for FMLA and provide much more information than a simple doctor’s note. If you are an employer and do not require your employees to complete these forms for every FMLA leave, you should. However, when you do, if you are a California employer, you will need to modify the forms.

In California, employers are not permitted access to the underlying diagnosis, illness, impairment, or physical/mental condition due to the state’s Constitutional right to privacy. Employers shall clarify that the health care providers should not disclose such patient information or genetic information, which is also protected under California law.

The forms only reference FMLA. However, California also has the California Family Rights Act (CFRA). Thus, California employers must modify the forms to clarify that any leave granted in California is FMLA/CFRA, and not just FMLA.

The forms also do not specifically reference California’s Pregnancy Disability Leave laws. Thus, employers need to modify the forms to clarify that any overlap in leaves is properly designated.

These issues can be addressed in amendments to the forms or in a separate document. Contact your business attorney to assure your modifications accurately clarify the applicable California law overlays.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.