Tuesday, December 15, 2009

Do you know? Recertification of FMLA leave

Asking an employee taking leave under the FMLA to recertify the need for the leave is a powerful tool employers can use to curb FMLA abuse. However, there are specific rules employers must follow to ensure that they are not the one accused of abuse.

1. 30-day rule.

Generally, an employer may request recertification no more often than once every 30 days, and only in connection with an absence by the employee. An employer can never ask for or require a second or third opinion on recertification. It must wait for the next 30-day period to request another recertification.

2. More than 30 days.

If the employee’s medical certification shows that the minimum duration of the condition is more than 30 days, an employer must wait for that minimum duration to expire before requesting a recertification.

Regardless of the minimum duration, an employer may always request a recertification of a medical condition at least once every six months in connection with an employee’s absence.

3. Less than 30 days. 

An employer may request recertification in less than 30 days if:

  • The employee requests an extension of a leave; or
  • 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); or
  • The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification (e.g., an employee with a knee injury playing on the company softball team). 

4. Timing.

An employer must give the employee at least 15 days to provide the recertification. The employee must meet that deadline to keep his or her FMLA leave, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

5. Content.

The employer may ask for the same information when obtaining recertification as permitted for the original certification. The employee has the same obligations to participate and cooperate in the recertification process as in the initial certification process. Importantly, as part of the information allowed to be obtained on recertification, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

6. Expense.

An employer can require that the employee bear the cost of the recertification.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.