Signing and Certifying a Family Medical Leave Act (FMLA) Form
A frequent question posed to the Illinois Chiropractic Society is whether a chiropractic physician may certify a “serious health condition” under the Family Medical Leave Act (FMLA)? Or, a related question is who may sign an FMLA form for leave?
The short answer is that a chiropractic physician may sign and certify FMLA leave in some cases, but there are very specific requirements. The chiropractic physician’s certification requires two things:
- Treatment including manual manipulation of the spine, and
- There must be a subluxation demonstrated by X-ray.
This means that if there is no X-ray, then the chiropractic physician may NOT certify FMLA leave. Additionally, it also means that a chiropractic physician cannot certify FMLA leave for an extremity diagnosis, because the diagnosis must include a subluxation of the spine.
First, FMLA is a federal and not state law. Therefore, although Doctors of Chiropractic have physician status under Illinois law, the FMLA statute supersedes Illinois law with a specific definition for which health care professionals may certify:
“(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 […]
(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 […]
(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…”
Therefore, the definition clearly requires that, unless a subluxation is demonstrated with an x-ray, chiropractic physicians are not considered to be a health care provider under FMLA. In fact, we have many examples in Illinois where FMLA leave was denied because the chiropractic physician did not take an x-ray.
There is no specific form required for FMLA, although you can see an example from the Department of Labor here. Companies can create their own forms that include the required elements. On these forms, the ICS encourages our doctors to include the key factors (X-ray taken and diagnosis of subluxation of the spine).
The courts have ruled several times on whether a chiropractic physician can certify leave for FMLA. Each time, with one exception, the courts have sided with the companies in refusing to accept a DC’s certification without a spinal subluxation and X-ray..
Olsen v. Ohio Edison Co. – Ruled against the employee and in favor of the company because the chiropractic physician did not take X-rays
Silcox v. Via Christi Okla. Reg’l Med. Ctr. – Also ruled against the employee and in favor of the company. Even though the chiropractic physician was treating a subluxation of the spine, she had not taken X-rays
Sims v. Alameda-Contra Costa Transit District – Here, even though there were no X-rays, the courts ruled in favor of the employee. However, there were extenuating circumstances – “AC Transit failed to notify Sims that the certification he presented was inadequate to the extent it relied on the opinion of a chiropractor [without X-rays]. Having failed to bring this defect to Sims’ attention at the appropriate time under the Act, and having failed to give Sims an opportunity to cure the problem […] AC Transit waived its right to argue that Sims did not have a serious health condition under the Act…”
Therefore, even if a technicality resulted in a favorable decision for the employee, all of these courts affirmed that the X-ray and spinal diagnosis are required for a chiropractic physician to certify FMLA leave for a serious health condition.