The Department of Labor (DOL) has recently released an opinion letter stating that an employer can require an employee to obtain a new medical certification (not just recertification) under the Family and Medical Leave Act (FMLA) when the employee seeks to take FMLA leave for the same serious health condition for more than one FMLA-covered 12-month leave year.
The Department of Labor (DOL) has recently released an opinion letter stating that an employer can require an employee to obtain a new medical certification (not just recertification) under the Family and Medical Leave Act (FMLA) when the employee seeks to take FMLA leave for the same serious health condition for more than one FMLA-covered 12-month leave year. The opinion letter is attached to this Alert.
The FMLA gives eligible employees of covered employers up to 12 weeks of unpaid leave in a designated 12-month leave period for specified family and medical reasons, including the employee's own serious health condition or the serious health condition of a spouse, child or parent.
If the employee requests FMLA leave for his or her own serious health condition, the employer can require the employee to submit a medical certification confirming the serious health condition, likely periods of absence and general information regarding treatment. If the employer has reason to doubt the validity of the medical certification, it can require the employee to obtain, at the employer's expense, a second opinion. If the employee's health care provider's certification and the second opinion conflict, the employer can require a third opinion (again, at the employer's expense).
In certain circumstances, the employer may request subsequent recertification of the serious health condition during the original 12-month leave period. The employer may not require second or third opinions of recertifications.
Once the 12-month period during which the employee originally sought FMLA leave has expired, the DOL opinion letter states that the employer can require the employee to obtain a new medical certification of the serious health condition. Basically, the DOL has stated that the employer can require the employee to re-qualify for FMLA leave when a new 12-month period begins. Specifically, the DOL opinion letter states: "It is our opinion that an 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.
Employers' Bottom Line:
DOL opinion letters do not have the binding effect of a judicial opinion, but they do provide guidance on how the Department interprets the statutory provision in question in the specific fact situation presented. This opinion is helpful to employers because it emphasizes the right of the employer to require the employee to qualify for FMLA leave in a new 12-month period, even if he or she qualified in a previous 12-month period.
If you have any questions regarding FMLA issues or any other labor or employment-related issue, please contact the Ford & Harrison attorney with whom you usually work.