You request FMLA leave. Your employer requests medical certification. You provide it. Your employer approves your FMLA leave. You take leave. Then, while you are on FMLA leave, your employer is sending you requests for new medical certification? Can your employer do that? The answer is yes, under certain circumstances, your employer can request new medical certification after you are on FMLA leave. These subsequent FMLA medical certification requests are acceptable under the Department of Labor’s FMLA regulations. If you have questions about FMLA medical certifications then you should contact a Texas FMLA lawyer right away.
However, the DOL’s FMLA regulations do not give employers unlimited and unrestrained freedom to make subsequent medical certification requests. Instead, the requests may only go to the employee based upon specific time limits within the FMLA regulations. Today’s post will address these time limits for subsequent FMLA medical certification requests. If you believe your employer violated your FMLA rights then you should contact Texas employment lawyers right away.
1. The 30 Day Rule
Employers generally cannot request recertification no more frequently than every thirty days the employee is on leave. The employer may request recertification every thirty days if the employee’s initial leave request is for an unknown duration. If the employee’s initial FMLA leave is for a set period then one of the next rules applies.
2. More than 30 Days Requested
If the employee’s initial FMLA request is for a set period or has a minimum duration of more than thirty days then the employer may not request recertification until the minimum requested time period expires. Once the defined period of minimum duration has expired then the employer can request recertification as frequently as every thirty days.
The exception to this rule is if the minimum duration is more than six months, the employer can always request recertification for FMLA leave every six months. Additionally, if the requested leave period is to continue more than a single calendar year (such as long term intermittent FMLA leave requests) then the employer can also request recertification annually.
3. Less than 30 Days Requested
Typically the employer will not be able to request recertification when the minimum duration for FMLA leave is less than thirty days because it would violate the thirty day rule. However, there are exceptions in the regulation that permit the employer to request recertification when the minimum duration is less than thirty days or it has been less than thirty days since the last certification.
If the employee requests an extension of FMLA leave then the employer can request certification for the extension. If the circumstances of the initial certification have changed significantly then the employer can ask for recertification to determine whether the current situation aligns with a need for FMLA leave.
This can be a change in the amount of FMLA leave taken (such as intermittent leave that goes from a couple hours a week to several full days each week) or changes in the medical condition (such as complications or the severity of the medical condition’s effects on the employee’s ability to perform his or her work).
Additionally, the employer can ask for recertification if it receives information that casts doubt on the medical need for FMLA leave periods or casts doubt on the continuing validity of the last certification.
An example might be an employee with a physical condition that prevents the employee from performing his or her job duties but then the employer sees the employee engaging in a physical recreation activity. When the employer seeks recertification in under thirty days on this basis then the employer will bear the burden of proving credible information was received by the employer and that the information legitimately cast doubt on the employee’s need for FMLA leave.
If You Receive a Request for Recertification
If you are on FMLA leave and receive a request for recertification you should comply with the request. FMLA requires employees to cooperate with employers by providing necessary information to assist the employer in verifying FMLA leave. Your employer must give you at least fifteen days to provide recertification. The employee must provide recertification unless unable to do so despite diligent and good faith efforts. If your employer asks for recertification more frequently than the FMLA permits, it is a good idea to provide it.
You can always file a complaint against your employer for interfering with your FMLA leave or retaliating against you. However, if your employer made a legitimate request for recertification and you do not comply then you lose FMLA protection. Then you can lose your job. Better to act with your job protected. However, there may be particular reasons to refuse your employer’s recertification requests.