Recertification of Need for Leave Under the FMLA

This update is the fifth in a series of articles explaining requirements under the Family and Medical Leave Act (FMLA). Revised regulations, which took effect January 16, 2009, made sweeping changes to FMLA requirements and procedures.

As discussed in "The Medical Certification Process Under the FMLA," the FMLA permits employers to require an employee to provide a medical certification to support the need for leave due to a serious health condition of the employee or of certain members of the employee's family. The FMLA also allows employers to require periodic recertification of the need for such leave. This article discusses the current FMLA rules regarding the recertification process for employees who are on leave due to the employee's own serious health condition or that of the employee's spouse, son, daughter or parent.

Recertification Timing

The general rule is that an employer may require recertification of a serious health condition no more frequently than the duration of the prior certification or every 30 days, whichever period is longer. For example, if an employee begins leave for a serious health condition with a certification that states that leave is necessary for 40 days, the employer may not seek recertification until the 40 days have passed. However, regardless of the duration of the original certification, the employer may require recertification every six months in connection with an absence.

There are several exceptions that allow an employer to obtain recertification more frequently than every 30 days. More frequent recertification may be required if:

1. The employee requests an extension of the leave.
2. The circumstances described by the previous certification have changed significantly. The regulations refer to changes in the duration or frequency of absences or the nature or severity of the illness. For example, a medical certification stated that an employee would need leave for one or two days periodically when the employee had a migraine headache but the employee's absences for migraines tend to last for four or more days. Another example might be a suspicious pattern of the employee's taking unscheduled FMLA intermittent leave adjacent to scheduled days off. Either of these cases might constitute changed circumstances that would allow a recertification in less than 30 days.
3. The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. The regulations offer the example of an employee who obtains FMLA leave for four weeks due to knee surgery but then is discovered playing in the company softball league during the third week of leave.

So long as the employer gives the employee 15 calendar days to produce the recertification, the employee must do so within the requested period, unless it is not practicable under the particular circumstances despite the employee's diligent, good faith efforts.

In general, the employer may ask for the same information when obtaining recertification that was permitted for the original certification and the employee has the same obligation to participate and cooperate in the recertification process as in the initial certification process. However, as part of the request for recertification because of leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee's absence pattern and ask the health care provider specifically to comment as to whether the serious health condition and the need for leave are consistent with such pattern. This is a way to deal with some of the suspicious circumstances discussed above.

Annual Medical Certifications

An issue that is related to recertification is the employer's right to seek an annual certification. When an employee's need for leave due to the employee's own serious health condition or that of a covered family member lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year. These annual new certifications are subject to the same rules as the original certification, including the possibility of second and third opinions.

Going Forward

Employers must revise their FMLA policies, forms and practices in light of the new regulations. For assistance in doing so, please contact one of the lawyers in the Faegre & Benson employment counseling and compliance practice.

Further details are necessary for complete understanding of the subjects covered by this summary. For this reason the specific advice of legal counsel is recommended before acting on any matter discussed in this article.