Once the need for FMLA intermittent leave has been certified, when can an employer ask for new or additional medical certification? HR.BLR.com Senior Legal Editor Susan Schoenfeld explains the rules in this video—as well as the three circumstances that create exceptions to the rules.

Hello. I’m Susan Schoenfeld, a Senior Legal Editor for BLR’s human resources and employment law publications. This is the third video in a series that answers questions we’ve received on medical certification under the Family and Medical Leave Act-or FMLA, which is the topic of many tough questions we receive from HR managers through our Ask the Expert service.

One aggravated leave manager recently asked:

An employee has an intermittent leave to care for a child’s serious health condition. Can we require the employee provide us with a note from the child’s physician for each missed day due to the child’s serious health condition?

The answer to this question is "probably not." Once the need for FMLA intermittent leave has been certified, an employer should not request medical documentation for absences as this may be viewed by the DOL as another request for medical recertification. As a result., FMLA regulations only allow an employer to seek recertification after 30 days unless specific exceptions apply (we will talk about those exceptions in a minute).

Note: Medical certification for a particular condition is in effect for the duration of leave as specified on the certification. If the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification, unless an exception applies.

In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. Accordingly, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition), the employer would be permitted to request recertification every six months in connection with an absence.

So what are the exceptions to the 30-day certification rule?

An employer may request recertification in less than 30 days if any of the three following circumstances exist:

1. The employee requests an extension of leave;
2. Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
3. The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

Note: Because intermittent leave may be necessary due to episodic flare-ups, if the medical certification states that leave may be necessary for such unplanned/unscheduled flare-ups, the employer may not require documentation of absences or additional certification unless one of the exceptions noted above applies.

In our first video in this series on FMLA medical certification, we addressed the question of whether obtaining medical certification is always necessary for leave. . In our second video, we addressed a scenario where an employee who was out on a workers’ compensation injury refused to get medical certification. I hope that the information in these videos will be useful in your HR practice and in administering FMLA and medical certification in the future. Thanks.

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