Conditions for Recertification Under FMLA

The Family Medical Leave Act (FMLA) allows an employer to request recertification from an employee every 30 days for pregnancy or for chronic or permanent/long-term conditions. However, there are other circumstances under which recertification would be appropriate, according to an opinion letter issued by the Wage and Hour Division of the U.S. Dept. of Labor (DOL).

According to the opinion letter dated May 25, 2004, the DOL said an employer may request an employee to recertify the reason for using the FMLA if, "the employer receives information which casts doubt upon the continuing validity of the certification." As an example, the DOL pointed to recurring periods of Friday/Monday absences used in conjunction with migraine headaches.

"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, a recertification under these circumstances could be justified," the DOL letter stated.

Employers who have observed such a pattern of potential abuse may indirectly ask the employee's health care provider, as part of the certification and recertification process, "if this pattern of absence is consistent with the employee's serious health condition."

The DOL explains, "An employer's direct contact with the employee's health care provider is prohibited, but…this question could be added to the medical certification form given to the employee for completion by the health care provider." However, the opinion also noted that Regulation 825.307(a) permits a health care professional representing the employer to contact the employee's health care provider for purposes of clarifying the information in the medical certification—if the employee gives permission.