Some information goes here
This box will hide on Careers page (disable by jQuery in navtop)
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.
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:
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.
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.
*Your message has been successfully sent.
In considering prior results, please be aware that: (i) each legal matter is
unique; (ii) prior results are not necessarily representative of all our
matters; and (iii) you should not rely on prior results to predict future
success in similar matters.
Copyright © 2000-2013 Faegre Baker Daniels LLP.
All Rights Reserved. | Disclaimer
Notes: Please do not send confidential information or
sensitive materials through this form.
Transmission of information to us via this feature does not establish an attorney-client relationship. Do not send any information that you would have treated confidentially.