Managing the FMLA
Certification and
Re-Certification Process
James H. Gilliam
BrownWinick
666 Grand Avenue, Suite 2000
Des Moines, IA 50309-2510
Telephone: 515-242-2446
Facsimile: 515-323-8546
E-mail: gilliam@brownwinick.com
Family and Medical Leave Act
Authorizes employees to take up to 12
workweeks of leave within a 12 month
period for qualifying reason.
FMLA Qualifying Reasons
• Employee’s own serious health condition
(SHC)
• Child care within one year of birth or foster
care/adoption placement
• Care of spouse/parent/child with SHC
FMLA Qualifying Reasons (cont.)
• 12 weeks for qualifying military exigency of
spouse/child/parent on active duty
• 26 weeks for care of spouse/child/parent/
next of kin for illness/injury in line of duty
FMLA Leave May Be Taken:
• Continuously
• Intermittently
• Reduced Work Schedule
Medical Certification Required for:
• Existence of SHC
• Type and Duration of Absence Needed
• Medical Necessity of Care for Covered
Family Member
Tip No. 1
Examine medical certifications for
completeness and sufficiency.
Incomplete Defined
“A certification is considered incomplete [if]
one or more of the applicable entries have
not been completed.”
Insufficient Defined
“A certification is considered insufficient if
the … information provided is vague,
ambiguous or non-responsive.”
Required Certification Content - 1
Name and contact information of health
care provider and type of medical practice/
specialization.
Required Certification Content - 2
Approximate date SHC commenced and
probable duration.
Required Certification Content - 3
Medical facts sufficient to support the need
for leave.
Examples of “Sufficient” Medical
Facts
•
•
•
•
•
•
•
Symptoms
Diagnosis
Hospitalizations
Doctor Visits
Medication Prescribed
Referrals for Evaluation
Regimen of Continuing Treatment
Required Certification Content – 4
(Patient is Employee)
• Inability to Perform Essential Function(s)
• Nature of Work Restrictions
• Duration of Inability
Required Certification Content – 5
(Patient is Covered Family Member)
• Family Member is in Need of Care
• Estimate of Frequency/Duration of Leave
Required to Provide Care
Required Certification Content – 6
(Intermittent/Reduced Schedule for
Planned Treatment for Employee or
Family Member)
• Medical Necessity for
Intermittent/Reduced Schedule
• Estimate of Dates/Duration for
Treatments/Periods of Recovery
Required Certification Content - 7
(Unforeseeable Intermittent/Reduced
Schedule for Employee’s SHC)
• Medical Necessity for
Intermittent/Reduced Schedule
• Estimate of Frequency/Duration of
Episodes of Incapacity
Required Certification Content - 8
(Intermittent/Reduced Schedule for Family
Member)
• Statement that Leave is Medically
Necessary to Care for Family Member
• Frequency/Duration of Leave
If Incomplete or Insufficient
• Advise Employee in Writing
• State What Information is Necessary
• Advise Employee of 7 Day Deadline to
Cure
• Advise Employee of Consequences
Consequences May Include:
• Denial of FMLA
• Denial of Approved Leave
• Discipline for Denial of Leave
Tip No. 2
Clarify or Authenticate the Medical
Certification
Clarification Defined
“Contacting the health care provider to
understand the handwriting … or to
understand the meaning of a response.”
Authentication Defined
“Requesting verification that the
information … was completed and/or
authorized by the health care provider that
signed the document.”
Limited Contact Permitted
•
•
•
•
HR Professional
Leave Administrator
Other Management Official
Never the Employee’s Direct Supervisor
Tip No. 3
Request Second/Third Opinions of
Medical Necessity
Second Opinion
• Reason to Doubt Validity of Certification
• Leave Granted on Provisional Basis
• May Not use Health Care Provider Under
Employer Control
Third Opinion
• Only if Employer-Designated Provider
Disagrees
• Jointly Designated
• Third Opinion Binding
Tip No. 4
Require a “New” Certification
Employer May Require a New Certification
When the Need for Leave Lasts Beyond
the Leave Year
Example: Amy exhausted FMLA leave in
2012 due to recurring migraines. She will
re-qualify for FMLA in January, 2013.
Even though her health care provider
certified the condition as “permanent,” the
employer may require a new certification
when Amy re-qualifies for FMLA in
January, 2013.
Tip No. 5
Require a Re-Certification
Re-Certification Rules
A: 30 Day Rule
Employer may not require re-certification
more frequently than every 30 days and
only in connection with an absence
(unless B or C apply).
B: More Than 30 Days
If the certification indicates the minimum
duration of the SHC is more than 30 days,
Employer must wait until minimum
duration expires before requiring recertification.
Example: Suzy breaks a leg in a freak
wallpapering accident at home. Her doctor
certifies she must stay off her feet for 40
days, necessitating FMLA. Employer may
not request re-certification during the first
40 days.
B – (continued)
An Employer may require a re-certification
every six months regardless of period in
original certification.
Example: Amy’s recurring migraines are
certified as “permanent.” The Employer
may require re-certification after six
months.
C – Less Than 30 Days
An Employer may require re-certification in
less than 30 days if the Employee
requests an extension of leave.
Example: Tom has a certified FMLA
absence of 7 days to take his wife to
physical therapy after her operation. On
the 6th day he informs Employer she
needs an additional week of PT.
Employer may require re-certification.
C – (continued)
An Employer may require re-certification
when the circumstances described by
previous certification have changed
significantly.
Examples of Significant Change of
Circumstances
•
•
•
•
•
Duration of Absence
Frequency of Absences
Nature of Illness
Severity of Illness
Nature/Severity of Complications
Example: Amy’s migraine-certification
states she needs to leave for 1-2 days
upon an episode. Her last two migraines
lasted 4 days each. Employer may require
re-certification even within a 30 day
period.
Example: Amy’s last 4 migraines all
occurred on a Friday prior to a three-day
holiday weekend. Employer may require
re-certification.
C – (continued)
If the Employer receives information that
casts doubt on the stated reason for the
absence or the continued validity of the
certification.
Example: Bob is on a 4 week FMLA leave
following knee surgery. During week 3,
Employer sees pictures of Bob waterskiing on his Facebook page. Employer
may require re-certification.
Re-Certification Requirements
• 15 Days to Respond After Employer
Request
• Same Obligations to Cooperate
• Employer May Provide Health Care
Provider With Absence Pattern and Ask If
Pattern is Consistent With SHC
Tip No. 6
Require Reports on Status and Intent to
Return to Work
Policy Must Be Non-Discriminatory and
Take All Relevant Facts Into Account
Notice of Intent Not to Return Must Be
Unequivocal
Tip No. 7
Require a Fitness-for-Duty Certification
Uniformly-Applied Policy
Only the Health Condition Requiring FMLA
Leave
Certification Requirements
•
•
•
•
Able to Return to Work
Able to Perform Essential Elements
Must Notify Employee Upon Designation
Provide List of Essential Elements
Intermittent Reduced Schedule
Fitness-for-Duty Certification Cannot Be
Required for Each Absence Unless
Reasonable Safety Concerns Exist (30Day Limit)
Tip No. 8
Transfer Employee During Foreseeable
Intermittent/Reduced Schedule Leave
• Same Pay/Benefits
• Harassment Not Permitted
• Return to Prior Position
Tip No. 9
Require Employee to Schedule
Intermittent Foreseeable Treatment at
Convenient Times
• Only Requires Employee Attempts
• Subject to Approval of Provider
Website: www.brownwinick.com
Toll Free Phone Number: 1-888-282-3515
OFFICE LOCATIONS:
666 Grand Avenue, Suite 2000
Des Moines, Iowa 50309-2510
Telephone: (515) 242-2400
Facsimile: (515) 283-0231
616 Franklin Place
Pella, Iowa 50219
Telephone: (641) 628-4513
Facsimile: (641) 628-8494
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be interpreted by the recipient as suggesting a need to obtain legal counsel from
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by any BrownWinick attorney, as slight changes in fact situations may cause a
material change in legal result.