Employers May Request FMLA Recertification If Circumstances Change

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A recent case provides a good reminder to employers that they can – and should – request recertification of an employee’s need for leave under the Family and Medical Leave Act if an employee’s use of such leave suddenly changes.

Recertification Under the FMLA. Under the FMLA, an employer is entitled to request certification from a health care provider of the employee’s need for leave. If the indicated minimum duration of FMLA leave (including on an intermittent basis) is longer than 30 days, the employer normally cannot request recertification until that period expires. There are exceptions to this limitation – including where circumstances described in the previous certification have changed. The Department of Labor’s regulations implementing FMLA provide specific examples of such changed circumstances:

For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification… Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off, then the timing of the absences might constitute a significant change in circumstances sufficient for an employer to request a recertification…

Background of the Case. In Whittington v. Tyson Foods, Inc., the employee was approved for intermittent FMLA leave based on his doctor’s certification that he would require 4-5 days off once or twice every 1-2 months. The employee used leave in accordance with this certification for about 6 months. He then called out for 16 consecutive workdays, and the employer requested FMLA recertification. The employee failed to provide the requested recertification. After being terminated for failing to return from an unapproved leave and failing to communicate with the employer, he sued for interference with his FMLA rights based on the request for recertification, among other things.

The Court’s Decision. The U.S. Court of Appeals for the Eighth Circuit, however, rejected the employee’s claim. It found that the 16-day leave was a “significant change in circumstances” that warranted the employer’s request for recertification, as supported by the regulatory language quoted above. According to the Eighth Circuit, the request for recertification was reasonable as a matter of law.

Lessons for Employers. As employers struggle with managing FMLA leave, particularly in situations where abuse of leave is suspected, they should remember that the regulations do provide some options – like recertification – to ensure that leave is being properly used. And the FMLA will not protect employees who fail to comply with their obligations to provide recertification.