Benefits and Compensation, HR Management & Compliance

Consequences for Failure to Recertify

An employee had to recertify his qualifying condition because of an established pattern of potential Family and Medical Leave Act (FMLA) misuse, but he failed to cooperate with the recertification process and didn’t provide the requested information. If he seeks FMLA protection for future absences, should we deny the request, or are we required to issue a new rights and responsibilities notice and give him 15 days to provide the recertification information?

FMLA protection

Under the FMLA, you are permitted to adopt a policy requiring a medical certification from the employee when he provides notice of a need for FMLA leave. He is then responsible to furnish a complete and sufficient certification within 15 calendar days (absent any extenuating circumstances such as a medical emergency) to support the request for FMLA leave.

Under circumstances including the above, where you receive information casting doubt about the validity of the certification or need for leave, you are permitted to request recertification.

Consequences for an employees failure to provide the certification or recertification in a timely manner may include denial of the request for FMLA leave, as long as he was warned of the anticipated consequence at the time the certification was requested. In the case of recertification, you are allowed to deny FMLA protection until he produces a sufficient recertification for his qualifying condition.

Unless he seeks leave for a separate qualifying condition or circumstance, you may continue to deny FMLA protection until he complies with the recertification request.

Jason R. Mau is a shareholder in the Boise office of Parsons Behle & Latimer. He can be reached by sending an e-mail to jmau@parsonsbehle.com.