Q: Our employee is trying to support his need for FMLA leave with medical certification from an online health care provider. Is this valid under the FMLA? And What if It’s a Licensed Clinical Professional Counselor?

A: Tackling the online doctor issue first, my knee-jerk reaction is NO WAY! After all, the FMLA regulations make clear that treatment by a health care provider means an “in-person” visit to the doc.

Case closed, right?

No so fast.

Before you slam the door on this FMLA request, reacquaint yourself with the definition of “health care provider” in the FMLA regulations. You may not have spent much time with it since it’s among the most boring provisions in the bunch. 29 CFR 825.125. There, the DOL has inserted a rather weasly, catch-all provision for health care provider. Way down there, in subsection 125(b)(4), the regulations state that there are “others” capable of providing health care services, specifically:

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.

Drat! So, the regulations go to some length to define “who” a health care provider is, only to open the door to virtually anyone your health plan is willing to cover. The DOL acknowledges as much in the preamble to the regulations (see discussion of this issue at page 67954). Mind yourself accordingly. In short, if your group health plan accepts the physician, you are in a tough spot to argue that this professional is not a health care provider for purposes of FMLA.

What About Licensed Clinical Professional Counselors (LCPCs)? Are They Considered a Health Care Provider?

I am asked this question often enough. If you take a close look at the regulations, although clinical social workers are covered by the FMLA regulations, Licensed Clinical Professional Counselors are not. That said, the same issue above applies here. If your group health plan covers LCPCs, the regulations indicate that you have to accept medical certification from these professionals on behalf of your employee.