DOL Opinion Letter Authorizes New Medical Certification for FMLA Leave Taken in New Leave Year

Volume 5, Issue 9
July 27, 2006

Under the Family and Medical Leave Act ("FMLA"), eligible employees are entitled to take up to 12 weeks of unpaid, job-protected leave in an employer-designated 12-month period (or leave year) for certain family and medical reasons. A medical certification may be requested for FMLA leave for a serious health condition of the employee or the employee's child, spouse or parent. Where the employer has reason to doubt the validity of the medical certification, the employer, at its own cost, may request a second or even third opinion. Employers may request recertification of the same serious health condition in limited circumstances set forth in 29 C.F.R. § 825.308.

An employer sought clarification from the Department of Labor ("DOL") as to whether a new medical certification can be sought from an employee for his/her first FMLA-absence in a new leave year (new 12-month period). The DOL authorized this practice and found it similar to retesting the 1,250 hours-of-service employee eligibility criterion upon the start of a new FMLA year for employees taking intermittent leave for the same serious health condition. The DOL stated: "An employer may reinitiate the medical certification process with the first absence in a new 12-month leave year. A second and third medical opinion, as appropriate, could then be requested in any case in which the employer has reason to doubt the validity of the new medical certification. This is the case despite the fact that the employer had required recertification in the previous 12-month leave year."

This opinion letter by the DOL provides employers with another tool for controlling and monitoring the use of FMLA leave. Employers are not required to allow employees to remain on FMLA leave unchecked year after year and may instead restart the certification process at the start of each 12-month period to ensure that the employee is still entitled to leave.

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