A commenter asked what information may be submitted for the medical certification to be considered sufficient to justify leave taken under the FMLA.  Section 6838 of title 5, United States Code, lists what information is sufficient in determining the appropriateness of the medical certification.  The law also provides for action to be taken if an agency doubts the validity of the certification by permitting agencies to request a second and a third opinion.  To prevent a stalemate from happening, the opinion of the third health care provider is deemed binding.  To assist agencies and employees, OPM's regulations have been revised to permit a health care provider representing the agency to contact the health care provider of the employee, with the employee's permission, to clarify medical information pertaining to the condition.  The information on the medical certification must relate only to the serious health condition for which the current need for family and medical leave exists.  No additional personal or confidential information may be requested.  This is consistent with DOL's regulations.

An agency objected to OPM's exception in § 630.1207(d), which permits an agency to designate, for the second opinion, a health care provider employed or under the administrative oversight of the agency in areas where access to health care is extremely limited.  This provision is an important and reasonable alternative in rural areas and overseas locations where it may be extremely difficult to locate a health care provider that is not employed or under the administrative oversight of the agency.    However, an agency's suggestion that, given tight budgets, it would be reasonable to permit agencies to use a health care provider with whom the agency had developed a relationship cannot be adopted because such a change is prohibited by law.  Permitting an agency to designate for the second opinion a health care provider employed or under the administrative oversight of the agency in areas where access to health care is extremely limited is consistent with DOL's regulations.

Other commenters stated that the guidance presented in OPM's Supplementary Information on provisional leave was incorrect in stating that if an employee does not submit the required medical certification, an agency should charge the employee's appropriate paid leave account.  In the Supplementary Information, OPM was restating guidance from the legislative history.  Section 630.1207(h) specifically states that if an employee is unable to provide the requested medical certification after leave has commenced, the agency may charge the employee as absent without leave (AWOL) or allow the employee to request that the provisional leave be charged as leave without pay or to the employee's annual and/or sick leave account, as appropriate. 

A commenter questioned the need to provide information to the health care provider on the essential functions of the employee's position.  Although appropriate in some cases, the commenter stated that, in many instances, the need for leave will be based on an employee's need for treatment or