September 14, 2005 FMLA2005-2-A

Dear Name*,

This is in response to your request for clarification regarding the application of the medical certification provisions of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. You state you understand that an employee who qualifies for FMLA leave for his or her own serious health condition may be asked to provide a new medical certification, not just a recertification, for his or her first FMLA-absence in a new leave year. You request confirmation that a second and third opinion can be sought on this new certification, even though the employee's serious health condition was previously certified, and FMLA leave approved, in previous years. We are aware that your employer is covered under Title I of the FMLA, and we assume for the purposes of this letter that your inquiry relates to eligible employees who have requested and taken leave in more than one FMLA 12-month leave year for the same qualifying serious health condition.

Background

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave period ­ with continuation of group health insurance coverage under the same conditions as prior to leave ­ for specified family and medical reasons. 29 C.F.R. § 825.200(c) permits four methods for determining the 12-month leave period: (1) a calendar year; (2) any fixed 12-month leave year; (3) a 12-month period measured forward from the date any employee's first FMLA leave begins; or, (4) a "rolling" 12-month period measured backward from the date an employee uses any FMLA leave. Once the employer chooses the 12-month leave period, it must be applied consistently and uniformly to all employees, with certain limited exceptions.

Medical certification issued by a health care provider may be requested for FMLA leave for a serious health condition of the employee or the employee's spouse, child, or parent. See 29 U.S.C. § 2613 and 29 C.F.R. § 825.305. The purpose of the medical certification is to allow employers to obtain information from a health care provider to verify that an employee, or the employee's ill family member, has a serious health condition, the likely periods of absences, and general information regarding the regimen of treatment. When requested, medical certification is a basic qualification for FMLA-qualifying leave for a serious health condition, and the employee is responsible for providing such certification to his or her employer. If an employee fails to submit a requested certification, the leave is not FMLA-protected leave. See 29 C.F.R. § 825.312(b).

Where the employer has reason to doubt the validity of the medical certification, the employer, at its own expense, may require the employee to obtain a second opinion and, if the employee's health care provider's certification and the second opinion certification conflict, a third opinion certification. See 29 C.F.R. § 825.307.

Subsequent recertification of the same serious health condition may be requested on a reasonable basis. See 29 U.S.C. § 2613(e). The regulations define the parameters under which recertification may be requested. See 29 C.F.R. § 825.308. Recertification is at the employee's expense unless the employer provides otherwise and second and third opinions may not be required on recertifications (§ 825.308(e)).

Medical Certification in a New 12-Month Leave Period

29 U.S.C. § 2612(a)(1)(C) and (D) of the FMLA entitle an eligible employee to 12 workweeks of leave for a serious health condition during the 12-month period selected by the employer [29 C.F.R. 825.200(b)] ­ subject to the medical certification requirements in 29 U.S.C. § 2613 of the Act. Medical certification in the new 12-month leave year is similar to the issue of retesting of the 1,250 hours-of-service employee eligibility criterion addressed in the FMLA-112 opinion letter dated September 11, 2000, copy enclosed. In that letter, we opined that an employee's eligibility, once satisfied for intermittent leave for a particular condition, would last through the entire current 12-month period FMLA leave year designated by the employer for FMLA purposes. However, if the employee used leave in a new FMLA leave year, the employer could reassess the employee's eligibility for FMLA leave at that time. Our analysis was consistent with Barron v. Runyon, 11 F. Supp. 2d 676 (E.D. Va. 1998), where the court concluded that FMLA leave "cannot be taken 'forever' on the basis of one leave request. Instead the statute grants an employee twelve weeks of leave per twelve-month period, not indefinitely." 11 F. Supp. 2d at 683.

Given the statutory focus on the leave year, our interpretation regarding new medical certifications is consistent with our interpretation on retesting the 1,250 hours-of-service employee eligibility criterion for the first absence in a new 12-month leave year for employees taking intermittent leave for the same serious health condition. 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. This is the case despite the fact that the employer had requested recertification in the previous 12-month leave year. Such a conclusion is also consistent with FMLA's purpose of balancing the interests of employees who need leave with the interests of employers in the operation of their businesses. See 29 U.S.C. § 2601(b).

This opinion is based exclusively on the facts and circumstances described in your request and is given on the basis of your representation, express or implied, that you have provided a full and fair description of all the facts and circumstances that would be pertinent to our consideration of the question presented. Existence of any other factual or historical background not contained in your request might require a different conclusion than the one expressed herein. You have represented that this opinion is not sought by a party to pending private litigation concerning the issue addressed herein. You have also represented that this opinion is not sought in connection with an investigation or litigation between a client or firm and the Wage and Hour Division or the Department of Labor.

Sincerely,

Alfred B. Robinson, Jr.
Deputy Administrator
Enclosure: FMLA-112

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).