Heard it on the Hotline: When Can an Employer Request Recertification for Intermittent FMLA Leaves?

Question: At the beginning of each year, can we require employees with an approved intermittent or chronic FMLA condition to provide an updated medical certification?

Answer: It depends upon the details of the current certification. To warrant a recertification for a chronic condition, the initial certification needs to be at least six months old, unless the original certification designated the duration of the condition to be less than six months and that designated timeframe has expired. If the original certification was issued more than six months ago or the duration of the condition has expired, the employer needs to wait until the employee requests FMLA leave prior to requiring an updated certification from the health care provider.

For example, if an employee calls off on January 15, indicating the absence is related to their chronic FMLA condition, the first response is to review the medical certification. If the prior certification indicates the duration of the condition has expired, or the certification is at least s months old, the employer can require a new medical certification prior to approving the January 15 absence as FMLA leave, as well as future FMLA absences related to this condition.

It is also recommended that employers check the applicable state’s FMLA law to determine if that differs from federal FMLA and is more favorable to the employee.

In general, the following guidance from the FMLA Federal Regulations can be applied:

§ 825.308 Recertifications for leave taken because of an employee's own serious health condition or the serious health condition of a family member.

(a) 30-day rule. An employer may request recertification no more often than every 30 days and only in connection with an absence by the employee unless paragraphs (b) or (c) of this section apply.

(b) More than 30 days. If the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification, unless paragraph (c) of this section applies. For example, if the medical certification states that an employee will be unable to work, whether continuously or on an intermittent basis, for 40 days, the employer must wait 40 days before requesting a recertification. In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. Accordingly, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition), the employer would be permitted to request recertification every six months in connection with an absence.

(c) Less than 30 days. An employer may request recertification in less than 30 days if:

(1) The employee requests an extension of leave, or

(2) circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee's absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days. Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off, then the timing of the absences also might constitute a significant change in circumstances sufficient for an employer to request a recertification more frequently than every 30 days, or

(3) the employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. For example, if an employee is on FMLA leave for four weeks due to the employee's knee surgery, including recuperation, and the employee plays in company softball league games during the employee's third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the employer to request a recertification in less than 30 days.

More information about the Family and Medical Leave Act can be shared by contacting MRA’s 24/7 HR Hotline at 866.HR-Hotline (866.474.6854) or [email protected].