This is the third in a five-part series that discusses options for employers facing possible fraudulent intermittent leave under the Family and Medical Leave Act (FMLA). Last time, we considered the use of second and third medical opinions. In this posting, we’ll look at recertifications of a serious health condition.
Another mechanism to address possible FMLA leave abuse is the employer’s right to demand recertification by a Health Care Provider (HCP) of the need for leave. 29 C.F.R. § 825.308. There are a number of circumstances in which an employer may request subsequent recertification of a medical condition following the original certification.
a) The company may request recertification every 30 days in connection with an absence, unless the original certification indicates that the minimum duration of the condition is more than 30 days.
b) If the indicated minimum duration is more than 30 days, the employer must wait to request recertification until one of the following has occurred:
i. The minimum duration expires (e.g. if the original certification indicates that the condition will last for 3 months, the employer must wait until the three months has passed before requesting recertification)
ii. One of the conditions in the next paragraph (c) applies, or
iii. Six months have passed and the employee has incurred an FMLA-related absence. This right to request recertification every six months in connection with an absence applies even if the original certification indicates that the employee will need intermittent leave for a period in excess of six months (e.g. a lifetime condition).
c) An employer may request recertification in less than 30 days under the following circumstances:
i. If the employee requests an extension of leave,
ii. Whenever the circumstance described by a medical certification have changed significantly (e.g., absences become more frequent or for longer periods of time, the nature of the condition changes or becomes more severe, or there are complications). For example, in January, Joe provides the company with medical certification indicating that he will be out every three months for a period of three to four days at a time. Four months later, Joe starts going out for a day or two every few weeks. Because the circumstances described in Joe’s certification have changed significantly, the company may demand recertification.
iii. Where the company receives information that casts doubt on the employee’s stated reason for the leave, a new certification may be demanded. For example, the employer is informed that Joe, who is out on FMLA for his own serious health condition, is working the same type of job for another employer. Under those circumstances, the employer may request recertification from Joe.
The regulations provide that the employer may provide the HCP with a record of the employee’s suspicious pattern of absences (e.g. all the absences fall on Mondays or Fridays), and ask if the employee’s serious health condition and leave for need is consistent with this pattern of absences.
Employees must fulfill all requests for recertification by the date specified by the company (at least 15 calendar days after requesting certification), unless it is not practicable to do so despite the employee’s good faith efforts. Such good faith efforts would be demonstrated by the employee checking with the employer to see if the certification has been transmitted by the HCP, and following up with the HCP if it has not.
Next time, we’ll take a look at fitness for duty certifications.