Managing the FMLA Certification and Re-Certification Process

1. Managing the FMLA Certification and Re-Certification Process James H. Gilliam BrownWinick666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510Telephone: 515-242-2446Facsimile: 515-323-8546E-mail: gilliam@brownwinick.com

2. Family and Medical Leave Act Authorizes employees to take up to 12 workweeks of leave within a 12 month period for qualifying reason.

3. 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

4. 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

5. FMLA Leave May Be Taken: Continuously Intermittently Reduced Work Schedule

6. Medical Certification Required for: Existence of SHC Type and Duration of Absence Needed Medical Necessity of Care for Covered Family Member

7. Tip No. 1 Examine medical certifications for completeness and sufficiency.

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

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

10. Required Certification Content - 1 Name and contact information of health care provider and type of medical practice/ specialization.

11. Required Certification Content - 2 Approximate date SHC commenced and probable duration.

12. Required Certification Content - 3 Medical facts sufficient to support the need for leave.

13. Examples of “Sufficient” Medical Facts Symptoms Diagnosis Hospitalizations Doctor Visits Medication Prescribed Referrals for Evaluation Regimen of Continuing Treatment

14. Required Certification Content – 4 (Patient is Employee) Inability to Perform Essential Function(s) Nature of Work Restrictions Duration of Inability

15. 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

16. 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

17. 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

18. 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

19. 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

20. Consequences May Include: Denial of FMLA Denial of Approved Leave Discipline for Denial of Leave

21. Tip No. 2 Clarify or Authenticate the Medical Certification

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

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

24. Limited Contact Permitted HR Professional Leave Administrator Other Management Official Never the Employee’s Direct Supervisor

25. Tip No. 3 Request Second/Third Opinions of Medical Necessity

26. Second Opinion Reason to Doubt Validity of Certification Leave Granted on Provisional Basis May Not use Health Care Provider Under Employer Control

27. Third Opinion Only if Employer-Designated Provider Disagrees Jointly Designated Third Opinion Binding

28. Tip No. 4 Require a “New” Certification

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

30. 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.

31. Tip No. 5 Require a Re-Certification

32. 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).

33. 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.

34. 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.

35. B – (continued) An Employer may require a re-certification every six months regardless of period in original certification.

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

37. C – Less Than 30 Days An Employer may require re-certification in less than 30 days if the Employee requests an extension of leave.

38. 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.

39. C – (continued) An Employer may require re-certification when the circumstances described by previous certification have changed significantly.

40. Examples of Significant Change of Circumstances Duration of Absence Frequency of Absences Nature of Illness Severity of Illness Nature/Severity of Complications

41. 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.

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

43. C – (continued) If the Employer receives information that casts doubt on the stated reason for the absence or the continued validity of the certification.

44. 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.

45. 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

46. Tip No. 6 Require Reports on Status and Intent to Return to Work

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

48. Notice of Intent Not to Return Must Be Unequivocal

49. Tip No. 7 Require a Fitness-for-Duty Certification

50. Uniformly-Applied Policy