Benefits and Compensation, HR Management & Compliance

Recertification Request Doesn’t Interfere with FMLA Rights

An employer’s request for medical recertification to establish eligibility for Family and Medical Leave Act (FMLA) leave didn’t violate the Act, the U.S. 8th Circuit Court of Appeals (which covers Arkansas) recently ruled. Missing 16 consecutive days rather than the expected four to five days set forth in the original medical certification was a significant change in circumstances warranting the employer’s inquiry, the court stated.


Brandon Whittington worked at Tyson Foods and was diagnosed with depression and anxiety. After consulting with his HR supervisor, he requested FMLA leave on August 3, 2017. His psychiatrist, Dr. Mary Beegle, certified the leave from August 3 to August 13.

Beegle further stated Whittington would continue to suffer episodes of anxiety and depression, lasting four to five days per episode, once or twice every one to two months for the next 12 months. Tyson approved the August leave request and further agreed the employee could take FMLA leave on an intermittent basis going forward under the physician’s certification.

Whittington continued to use Beegle’s certification throughout 2017 but then requested FMLA leave from December 8 to December 18, 2017, which was more than the four to five days stated in the certification. Tyson responded by again informing him of his FMLA rights and responsibilities and noting he had until December 27 to provide information supporting the leave request, which was timely submitted. The doctor again stated he would need intermittent leave for episodes lasting four to five days each, once or twice every one to two months for the next year. The employer approved the leave.

Then, between February 12 and March 5, 2018, Whittington called Tyson’s automated attendance hotline every morning to report he was unable to work. On March 6, he returned to the facility after missing 16 consecutive workdays. He provided a note from Beegle asking the employer to excuse his absence from February 12 to March 5 because they had been adjusting his medication.

Later that day, Whittington submitted a revised application requesting FMLA leave from February 19 to March 9, again more than the four to five days set forth in the certification. Tyson advised him of his rights and responsibilities under the FMLA and informed him he had until March 21, 2018, to provide “sufficient certification” to support the request. Whittington, however, didn’t return to work on March 9, as indicated on his application.

Tyson’s policy characterized a failure to call in for three consecutive days as “Job Abandonment.” Although Whittington called the company’s absence hotline from March 7 to March 14, the calls stopped on March 14. Company representatives attempted to contact him multiple times without success. When he didn’t return updated certification documents by March 21, the employer terminated him for failing to (1) return from leave on March 9 or (2) call in for job abandonment.

Whittington filed an FMLA lawsuit.

Was There a Legitimate Basis for Requesting Recertification?

Whittington claimed Tyson interfered with his FMLA rights by requiring recertification from Beegle in March 2018. The 8th Circuit noted it’s undisputed an employer may require certification from an employee’s healthcare provider to support an FMLA leave request and, “on a reasonable basis,” request recertification.

Under the U.S. Department of Labor’s (DOL) regulations, however, “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 recertification.” In Whittington’s case, the minimum duration was the one year stated by his physician.

The 8th Circuit then observed there are exceptions to the rule, one of which was if the circumstances described by the previous certification had changed significantly. Thus, the court had to determine whether the facts demonstrated such a significant change in Whittington’s situation.

Short Answer Is ‘Yes’

The 8th Circuit noted Whittington’s 16 consecutive days of leave more than tripled the length of the consecutive leave days certified by Beegle. It concluded the change in circumstances was significant.

Therefore, Tyson’s recertification request was reasonable as a matter of law and didn’t interfere with Whittington’s FMLA rights. Accordingly, the court affirmed the district court’s dismissal of his lawsuit.

Bottom Line

Employers often feel frustrated by the complex procedural requirements for administering the FMLA. There’s one form for this and another for that. They must determine whether a leave request qualifies, even when they don’t believe they have all the necessary information, and inform the employee of their decision.

Whittington’s case shows, however, you can achieve the desired result through careful attention to the details of employer and employee rights coupled with careful documentation. Moreover, at least the courts governing Arkansas aren’t blind to the burden on employers. Here, it’s notable that, as a matter of law, a leave of 16 days is significant when the certification stated only intermittent leaves of four to five days were to be expected.

In short, you can hold employees’ “feet to the fire” with respect to requiring FMLA leave recertification provided you carefully document the process and the events involved.

Steve Jones is an attorney with Jack Nelson Jones, PLLC, in Little Rock, Arkansas. You can reach him at

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