Suppose an employee takes time off under the Family and Medical Leave Act (FMLA) for his or her own serious health condition, and you require a healthcare provider’s certification confirming the need for leave. After a year goes by, the employee needs additional leave for the same health problem. Can you require this person to submit a brand new certification? Or do you have to grant the leave based on the year-old certification?
According to a new U.S. Department of Labor (DOL) opinion letter, you can insist on a new medical certification for a new leave year.
Medical Certification Basics
Under the FMLA, which applies to employers with 50 or more employees, eligible employees can take up to 12 weeks of unpaid, job-protected leave in a 12-month leave period. When an employee needs FMLA leave for their own serious health condition or to care for a family member with a serious health condition, you can require medical certification from a healthcare provider verifying the need for leave.
If you doubt the certification’s validity, you can require the employee to obtain a second—and sometimes a third—opinion, at your expense. (Note that the California Family Rights Act doesn’t permit employers to request second or third opinions if leave is for a family member’s serious health condition.)
You can require periodic recertification, at the employee’s expense, during a leave if: the employee requests a leave extension; circumstances described by the original certification have changed significantly; you receive information casting doubt on the certification’s validity; or the employee can’t return from leave because of the continuation, recurrence, or onset of a serious health condition.
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A New Certification?
The new DOL opinion letter says that when an employee who has used leave in a 12-month period then requests time off in a new leave year, you can reassess the eligibility for FMLA leave at that time, including requiring a new medical certification—even if the leave is for the same health condition. Second and third opinions, if appropriate, could then be requested if you have reason to doubt the new certification’s validity.
Measuring the Leave Period
As the DOL letter makes clear, FMLA eligibility doesn’t last forever. Rather, a request for leave and accompanying certification ends at the conclusion of the 12-month leave period. Thus, how you measure the 12-month period is critical because an employee’s entitlement to more leave and your right to seek a new certification rest on that definition.
FMLA regulations permit four methods for determining the 12-month period:
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A calendar year;
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Any fixed 12-month leave year;
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A 12-month period measured forward from the date an employee’s first FMLA leave begins; or
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A “rolling” 12-month period measured backward from the date an employee starts using FMLA leave.
It’s important to notify employees which method you use, either in your employee handbook or in a separate written notice. If you don’t specify a method, the leave period will be the one that’s most beneficial to the employee requesting leave—even if that results in having different leave periods for different employees.