May 25, 2004 FMLA2004-2-A
Dear Name*,
Thank you for your letters dated July 7, 1998, addressed to
Ms. Michelle Bechtoldt, formerly of the Office of Enforcement Policy, Family
and Medical Leave Act Team, in regard to medical recertification issues under
the Family and Medical Leave Act of 1993 (FMLA). You have requested clarification
of Regulations 29 Part 825 in regard to recertification issues
You agreed in a telephone conversation on February 27, 2004, that it would be appropriate to combine our response to your inquiries
in one letter. We apologize for the long delay in providing this response.
The Wage and Hour Division of the U.S. Department of Labor
administers the FMLA for all private, state and local government employees, and
some federal employees. Although determinations of coverage, eligibility and
other issues of compliance under the FMLA are fact intensive, we trust that the
following information will provide the clarification you requested.
1. Minimum recertification period when no minimum
duration of capacity is specified in the medical certification.
You understand that the FMLA allows an employer to request
recertification every 30 days for pregnancy, chronic or permanent/long term
conditions, citing four scenarios involving such conditions, none of which have
a minimum duration of incapacity specified in the medical certification.
You request that we confirm this understanding or explain our basis for
disagreement.
We agree with your understanding, provided the recertification
is requested in connection with an absence. Section 103(e) of the FMLA states
the employer may require subsequent recertifications "on a reasonable basis."
The FMLA regulations at §825.308(a) limit recertification for pregnancy, chronic,
or permanent/long-term serious health conditions, when no minimum duration
of incapacity is specified on the medical certification (as discussed in §825.308(b)),
to no more often than every 30 days, provided the recertification is done
only in connection with an absence. If circumstances have changed significantly,
or the employer receives information which casts doubt upon the continuing
validity of the certification, recertification may be requested more frequently
than every 30 days
2. Minimum recertification period with
Friday/Monday absence pattern.
You understand that a pattern of Friday/Monday absences can
constitute "information that casts doubt upon the employee's stated reason for
the absence" (§825.308(a)(2)), thus allowing an employer to request recertification
more frequently than every 30 days.
We agree with your understanding, provided there is no
evidence that provides a medical reason for the timing of such absences and the
request for recertification is made in conjunction with an absence. A recertification
under these circumstances could thus be justified, for example, if a medical
certification indicated the need for intermittent leave for two or three days a
month due to migraine headaches, and the employee took such leave every Monday
or Friday (the first and last days of the employee's work week).
3. Informing medical provider
of pattern of Monday/Friday or apparent excessive absences, and asking for
clarification.
You understand that an employer, when requesting medical
certification or recertification, may inform the health care provider that the
employee has a pattern of Friday/Monday or apparent excessive absences. You
add that you understand that an employer who has observed such a pattern of
potential abuse may ask the health care provider, as part of the certification
(and subsequent recertification) process, if this pattern of absence is
consistent with the employee's serious health condition. You recognize that an
employer's direct contact with the employee's health care provider is prohibited,
but you understand that this question could be added to the medical
certification form given to the employee for completion by the health care
provider.
The FMLA does not prohibit an employer from including a
record of an employee's absences along with the medical certification form for
the health care provider's consideration in determining the employee's likely
period of future absences. Nor does the FMLA prohibit an employer from asking,
as part of the recertification process, whether the likely duration and
frequency of the employee's incapacity due to the chronic condition is limited
to Mondays and Fridays.
Further, please be aware that Regulation §825.307(a)
permits a health care provider representing the employer to contact the employee's
health care provider for purposes of clarifying the information in the medical
certification. Such contact may only be made with the employee's permission.
This opinion is based exclusively on the facts and
circumstances described in your request and is given on the basis of your
representation, explicit or implied, that you have provided a full and fair
description of all the facts and circumstances which 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.
We hope that this has been responsive to the questions you
have raised. If I can be of further assistance, please do not hesitate to
contact me.
Sincerely,
Tammy D. McCutchen
Administrator
Note: * The actual name(s) was removed to preserve
privacy in accordance with 5 U.S.C. 552 (b)(7).