March 01, 2006

Administering the Family and Medical Leave Act (FMLA) is enough to give even the most patient human resources professional a migraine. Faced with new and creative requests by employees for time off, employers are looking for guidance in navigating FMLA regulations pertaining to medical certification.

One potential source of help could be a recent Department of Labor (DOL) Opinion Letter that confirms that an employer can require an employee to obtain a new FMLA medical certification (not just a recertification) when the employee seeks FMLA leave for the same serious health condition in a new 12-month leave year. DOL Opinion Letter FMLA 2005-2-A.

Under the FMLA, eligible employees may take up to 12 weeks of unpaid leave in a 12-month leave period for certain family and medical reasons, including the employee’s own serious health condition or the serious health condition of a spouse, child or parent. An employer may request medical certification from the employee’s health care provider if the employee requests FMLA leave for his or her own serious health condition. If the employer questions the validity of the certification, the FMLA regulations permit a second and third medical opinion, under conditions specified in the regulations, and at the employer’s expense.

In certain circumstances, an employer may request subsequent recertification of the serious health condition during the original 12-month leave period. An employer may not required second or third opinions of recertifications.

Requiring new medical certification deemed permissible

The new DOL Opinion Letter confirms that after expiration of the original 12-month leave period an employer can require that the employee obtain a new medical certification of the serious health condition. This means that the employer can require the employee to re-qualify for FMLA leave when a new 12-month leave period begins.

The Opinion Letter states: “[A]n employer may reinitiate the medical certification process with the first absence in a new 12-month leave year. A second and third medical opinion, as appropriate, could then be requested in any case in which the employer has reason to doubt the validity of the new medical certification.” The DOL notes that the employer can require the new certification even if it has requested recertification in the prior 12-month period.

Obtaining employee medical information still difficult

While the DOL Opinion Letter is a positive development for employers, FMLA regulations still place significant restrictions on an employer’s ability to obtain medical information to help determine whether an employee suffers from a serious health condition. Employers should be aware of permissible methods that do exist for obtaining this information.

For example, employers can rely on a 2004 DOL Opinion Letter which stated that when an employer has “information that casts doubt upon the employee’s stated reason” for the FMLA absence, such as a pattern of Monday and Friday absences, the employer may request recertification “more frequently than every 30 days,” as long as no prior medical evidence explains such absences.” The same letter allows an employer to ask the employee’s health care provider as part of a recertification if the pattern of suspect absences is consistent with employee’s serious health condition.

In addition, FMLA and other leave policies should be crafted to provide the maximum protection possible for the employer.

Employers who would like assistance in drafting a compliant FMLA policy or in addressing FMLA administration issues should contact their Butzel Long employment lawyer or Miriam Rosen at [email protected] or (248) 258-4498.