HR Management & Compliance

Ask the Expert: FMLA Abuse by Employee with Chronically Ill Wife?

We have an employee whose wife has a serious, chronic health condition. He has approved intermittent FMLA. We are suspicious of FMLA abuse–that he is taking advantage of it and uses his wife as an excuse for all of his absences, which are frequent. Can we ask for a doctor’s note each time he has to take time off for his wife’s illness?

If the employee meets eligibility criteria for intermittent leave to care for a seriously ill family member, once the leave has been approved by the employer, the employee does not need to reestablish eligibility each time more leave is needed. The employer may ask for recertification every 30 days (after the initial certification is received), or in less than 30 days if:

(1) The circumstances described in the previous certification have changed significantly, or

(2) The employer has received information that casts doubt on the employee’s stated reason for leave.

When the leave is for the care of a family member with a serious health condition, the FMLA certification should include a statement by the health care provider that the employee is needed to care for the child, spouse, or parent’s medical, personal, or psychological needs and the amount of time that the employee is needed and whether it is only intermittent or part time.

DOL has developed a medical certification form (Form WH-380F) for use by employers for certification of a family member’s serious health condition. Although employers are not required to use the form suggested by DOL, no information may be requested beyond that specified on the DOL form. To obtain a copy of DOL’s Form WH-380F, go to:

An employer may request recertification of an employee’s serious health condition no more often than every 30 days, unless one of the specific exceptions discussed above applies. If the medical condition is a chronic or long-term condition certified to last more than 30 days, an employer must wait for the minimum duration of the condition (appearing in the certification) to expire before requesting a recertification, unless one of the specific exceptions discussed below applies.

Timing of recertification. The employee must provide the requested recertification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s request), unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good-faith efforts.

Content of request for recertification. The employer may ask for the same information when obtaining recertification as that permitted for the original medical certification. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or adequate authorization to the healthcare provider) in the recertification process as in the initial certification process.

Cost. Recertification is at the cost of the employee.

Second and third opinions. Second and third opinions on medical recertifications are not permitted.

Pattern of absences. As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the healthcare provider with a record of the employee’s absence pattern and ask the healthcare provider if the serious health condition and need for leave is consistent with such a pattern.

This may be particularly helpful when the employee has a Monday/Friday pattern of absences that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

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