Give Me Your Best Guesstimate – Revisiting FMLA Recertification

Contributed by Beverly Alfon

Things can get dicey when an FMLA eligible employee wants to take FMLA leave on an intermittent basis.  It is not a simple schedule change.  It involves monitoring blocks of time that the employee takes due to a specific illness or injury.   Often, the employer is on high alert for “flare ups” that may require the employee to take off a few hours, days or weeks off in order to receive medical treatment related to his/her medical condition.  The employer carries the burden of reshuffling the workforce (often on short notice) while also ensuring proper administration of the employee’s FMLA leave.  Furthermore, the option of intermittent FMLA leave can make an employer vulnerable to abuse by employees.  Most employers rely on medical certifications to curb the abuse.  The certification requests typically seek a statement of the medical necessity of the intermittent leave, and the anticipated duration/frequency of periods of incapacity.  What happens if an employee exceeds the doctor’s estimated number of flare-ups or episodes of incapacity?

Last week, in Hansen v. Fincantieri Marine Grp. LLC (E.D. Wisconsin, Case No. 12-00032), a federal court issued a decision denying summary judgment to an employer on FMLA interference and retaliation claims.  The employer terminated an employee when he continued to miss work after exceeding his doctor’s estimate of episodic flare-ups  of “four episodes every six months.”   Within a 3-month period, the employee had approximately 10 episodes.  The Court reasoned that “the employer cannot simply assume that any leave in excess of the estimate is unauthorized.”  Rather, “[t]he fact that the regulations allow the employer to request a recertification under such circumstances argues against treating leave in excess of the estimate as outside the certification.”  It was not enough that the employer’s attendance policy administrator asked the employee’s doctor to confirm the information on the original medical certification.  The Court determined that the request for “confirmation” did not amount to a formal request to certify the employee’s additional absences.  The Court denied the employer’s motion even though it noted that it appeared that the employee wastaking off from work more than was medically necessary…” 

In general, an employer may ask the employee to provide a recertification no more often than every 30 days and only in connection with an absence by the employee.  If a certification indicates that the minimum duration of the serious health condition is more than 30 days, the employer must wait until that minimum duration expires before requesting recertification.

The exception to the general rule is that an employer may request a recertification in less than 30 days if (a) the employee requests an extension of leave; (b) the circumstances described by the previous certification have changed significantly (e.g., change in frequency of flare ups), or (c) the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification.   In general, the employer may ask for the same information in a recertification as that allowed in the original request for medical certification. However with recertification, an employer may provide the health care provider with a record of the employee’s absences and ask if the serious health condition and need for leave is consistent with the leave pattern.

Bottom line:  When an employee has exceeded the physician’s estimate of duration and frequency of period of incapacity indicated on the initial medical certification, it would be best practice for an employer to request recertification from the physician before taking any adverse employment action against the employee.  However, be mindful of recertification request limits.