Leveraging the FMLA Recertification Process

By Gail I. Cohen, Esq.

Director, Employment Law & Compliance
Matrix Absence Management

Under the Family and Medical Leave Act (FMLA), an employer can request a recertification every six months and anytime an employee requests an extension of leave. Recertification gives the employer a complete, new FMLA medical certification from the employee’s or family member’s healthcare provider. After approving FMLA at the start of a new leave year, an employer can request recertification no more than every 30 days and only “in connection with an absence.” And an employer cannot request recertification if the employee has not recently taken leave or reported the need under the approved leave.

Change of Circumstances and Patterns

But the exceptions to the above general rules give employers some leverage. An employer can request recertification if “circumstances have changed significantly.” The regulation provides two examples: if the employee reports a need for more leave than the provider certified, or if the employee has a “pattern” of using unscheduled absences in connection with days off. Unfortunately, the regulations do not define “pattern.” Since the FMLA certification requires the provider to estimate the anticipated frequency and duration of the employee’s need for time off, an employer could not immediately require recertification the first time an employee exceeds the time-off estimate. But once you have that “pattern” established, what does a smart employer do?

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