Managing the FMLA Certification and

Re-Certification ProcessJames H. Gilliam

BrownWinick666 Grand Avenue, Suite 2000

Des Moines, IA 50309-2510Telephone: 515-242-2446Facsimile: 515-323-8546

E-mail: gilliam@brownwinick.com

Family and Medical Leave Act

Authorizes employees to take up to 12 workweeks of leave within a 12 month period for qualifying reason.

FMLA Qualifying Reasons

• Employee’s own serious health condition (SHC)

• Child care within one year of birth or foster care/adoption placement

• Care of spouse/parent/child with SHC

FMLA Qualifying Reasons (cont.)

• 12 weeks for qualifying military exigency of spouse/child/parent on active duty

• 26 weeks for care of spouse/child/parent/ next of kin for illness/injury in line of duty

FMLA Leave May Be Taken:

• Continuously

• Intermittently

• Reduced Work Schedule

Medical Certification Required for:

• Existence of SHC

• Type and Duration of Absence Needed

• Medical Necessity of Care for Covered Family Member

Tip No. 1

Examine medical certifications for completeness and sufficiency.

Incomplete Defined

“A certification is considered incomplete [if] one or more of the applicable entries have not been completed.”

Insufficient Defined

“A certification is considered insufficient if the … information provided is vague, ambiguous or non-responsive.”

Required Certification Content - 1

Name and contact information of health care provider and type of medical practice/ specialization.

Required Certification Content - 2

Approximate date SHC commenced and probable duration.

Required Certification Content - 3

Medical facts sufficient to support the need for leave.

Examples of “Sufficient” Medical Facts

• Symptoms

• Diagnosis

• Hospitalizations

• Doctor Visits

• Medication Prescribed

• Referrals for Evaluation

• Regimen of Continuing Treatment

Required Certification Content – 4

(Patient is Employee)

• Inability to Perform Essential Function(s)

• Nature of Work Restrictions

• Duration of Inability

Required Certification Content – 5

(Patient is Covered Family Member)

• Family Member is in Need of Care

• Estimate of Frequency/Duration of Leave Required to Provide Care

Required Certification Content – 6

(Intermittent/Reduced Schedule for Planned Treatment for Employee or

Family Member)

• Medical Necessity for Intermittent/Reduced Schedule

• Estimate of Dates/Duration for Treatments/Periods of Recovery

Required Certification Content - 7

(Unforeseeable Intermittent/Reduced Schedule for Employee’s SHC)

• Medical Necessity for Intermittent/Reduced Schedule

• Estimate of Frequency/Duration of Episodes of Incapacity

Required Certification Content - 8

(Intermittent/Reduced Schedule for Family Member)

• Statement that Leave is Medically Necessary to Care for Family Member

• Frequency/Duration of Leave

If Incomplete or Insufficient

• Advise Employee in Writing

• State What Information is Necessary

• Advise Employee of 7 Day Deadline to Cure

• Advise Employee of Consequences

Consequences May Include:

• Denial of FMLA

• Denial of Approved Leave

• Discipline for Denial of Leave

Tip No. 2

Clarify or Authenticate the Medical Certification

Clarification Defined

“Contacting the health care provider to understand the handwriting … or to understand the meaning of a response.”

Authentication Defined

“Requesting verification that the information … was completed and/or authorized by the health care provider that signed the document.”

Limited Contact Permitted

• HR Professional

• Leave Administrator

• Other Management Official

• Never the Employee’s Direct Supervisor

Tip No. 3

Request Second/Third Opinions of Medical Necessity

Second Opinion

• Reason to Doubt Validity of Certification

• Leave Granted on Provisional Basis

• May Not use Health Care Provider Under Employer Control

Third Opinion

• Only if Employer-Designated Provider Disagrees

• Jointly Designated

• Third Opinion Binding

Tip No. 4

Require a “New” Certification

Employer May Require a New Certification When the Need for Leave Lasts Beyond the Leave Year

Example: Amy exhausted FMLA leave in 2012 due to recurring migraines. She will re-qualify for FMLA in January, 2013. Even though her health care provider certified the condition as “permanent,” the employer may require a new certification when Amy re-qualifies for FMLA in January, 2013.

Tip No. 5

Require a Re-Certification

Re-Certification Rules

A: 30 Day Rule

Employer may not require re-certification more frequently than every 30 days and only in connection with an absence (unless B or C apply).

B: More Than 30 Days

If the certification indicates the minimum duration of the SHC is more than 30 days, Employer must wait until minimum duration expires before requiring re-certification.

Example: Suzy breaks a leg in a freak wallpapering accident at home. Her doctor certifies she must stay off her feet for 40 days, necessitating FMLA. Employer may not request re-certification during the first 40 days.

B – (continued)

An Employer may require a re-certification every six months regardless of period in original certification.

Example: Amy’s recurring migraines are certified as “permanent.” The Employer may require re-certification after six months.

C – Less Than 30 Days

An Employer may require re-certification in less than 30 days if the Employee requests an extension of leave.

Example: Tom has a certified FMLA absence of 7 days to take his wife to physical therapy after her operation. On the 6th day he informs Employer she needs an additional week of PT. Employer may require re-certification.

C – (continued)

An Employer may require re-certification when the circumstances described by previous certification have changed significantly.

Examples of Significant Change of Circumstances

• Duration of Absence

• Frequency of Absences

• Nature of Illness

• Severity of Illness

• Nature/Severity of Complications

Example: Amy’s migraine-certification states she needs to leave for 1-2 days upon an episode. Her last two migraines lasted 4 days each. Employer may require re-certification even within a 30 day period.

Example: Amy’s last 4 migraines all occurred on a Friday prior to a three-day holiday weekend. Employer may require re-certification.

C – (continued)

If the Employer receives information that casts doubt on the stated reason for the absence or the continued validity of the certification.

Example: Bob is on a 4 week FMLA leave following knee surgery. During week 3, Employer sees pictures of Bob water-skiing on his Facebook page. Employer may require re-certification.

Re-Certification Requirements

• 15 Days to Respond After Employer Request

• Same Obligations to Cooperate

• Employer May Provide Health Care Provider With Absence Pattern and Ask If Pattern is Consistent With SHC

Tip No. 6

Require Reports on Status and Intent to Return to Work

Policy Must Be Non-Discriminatory and Take All Relevant Facts Into Account

Notice of Intent Not to Return Must Be Unequivocal

Tip No. 7

Require a Fitness-for-Duty Certification

Uniformly-Applied Policy

Only the Health Condition Requiring FMLA Leave

Certification Requirements

• Able to Return to Work

• Able to Perform Essential Elements

• Must Notify Employee Upon Designation

• Provide List of Essential Elements

Intermittent Reduced Schedule

Fitness-for-Duty Certification Cannot Be Required for Each Absence Unless Reasonable Safety Concerns Exist (30-Day Limit)

Tip No. 8

Transfer Employee During Foreseeable Intermittent/Reduced Schedule Leave

• Same Pay/Benefits

• Harassment Not Permitted

• Return to Prior Position

Tip No. 9

Require Employee to Schedule Intermittent Foreseeable Treatment at Convenient Times

• Only Requires Employee Attempts

• Subject to Approval of Provider

Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (641) 628-8494

DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.