Recert of Intermittent Leave

KP68

We are considering getting a recertification from an employee who is currently on intermittent leave for her mother's health following surgery. Word going around is that her mother is back at work now, and this came from a co-worker who is also a relative.

So, if we ask for the recertification and don't get it, can we deny continued intermittent leave, even though it was approved when initially requested? I'm not sure what we can/should do in this situation....

Thanks.

Don D

Federal law is that you cannot recert any more often than each 30 days. Yes you can require recertification and deny continued intermittent leave if it is not forthcoming.

POPEYE

I agree but would add two words of caution. Be consistent. We require each EE that has been certified for intermittent leave to re-certify every 6 months. They are so informed in their entitlement approval letter.

System

From Kentucky Employment Law Letter:
You can also request "recertification" when warranted, such as when the employee requests an extension of leave, circumstances in the initial certification change, or you receive information that casts doubt on the continuing validity of the certification.

James Sokolowski
HRhero.com

KP68

That has been my underlying concern....I have never requested a recertification before. But, this could be the "precedence setting" case, I guess.

Don D

KP68: When I do request recert, I am careful to do it in writing and am careful to word the letter as if four lawyers, three DOL investigators and two ACLU officials will be reading it. Seriously, word the letter very carefully. If you are challenged, the challenge will go directly to your recert demand letter. Tell the employee the facts; when his leave began, how long it lasted, when his years begins over, what incidents of fmla there have been, what the company policy is with a copy attached and then tell him that the regulations allow the employer to have the necessity for the earlier approved leave recertified. Be careful not to suggest the leave will be re-approved. Tell him in no uncertain terms that the certification must be in your office no later than (X) and at that time, you will review the document(s) and issue a written decision within two business days. Leave out promises, well wishes, comments about his job, remarks about his prior absences causing you to back up his position, and certainly any remark about the rumor you have referenced. When you're through with your letter, ask yourself, "Is this a letter I will be perfectly comfortable standing up in court and reading before a jury?"

KP68

Don would it be sufficient enough to state just the bare bone facts, not leaving anything to interpretation? Specifically, if the letter was to be worded as such:

Dear so&so:

"Under the FMLA Regulations, it states that while an employee is out on Family Medical Leave, employers may require that employees report periodically on the status of the leave and continued intentions to return to work. Employers may not ask for such updates more frequently than once every thirty (30) days....
Since the last Certification we received was dated xx/xx/xxxx, we would like you to have the physician treating your family member provide us with an update on the need for your intermittent leave. Attached you will find another Certification of Health Care Provider Form for you to have completed....
Please return this form to us within 15 days (by xx/xx/xxxx). It can be faxed to my attention at....
Failure to return this form by xx/xx/xxxx may jeopardize your job protection under the FMLA and may result in denial of future time off under FMLA as well."


Thoughts on this?

Don D

>Don would it be sufficient enough to state
>just the bare bone facts, not leaving anything
>to interpretation? Specifically, if the letter
>was to be worded as such:
>
>Dear so&so:
>
>"Under the FMLA Regulations, it states that
>while an employee is out on Family Medical
>Leave, employers may require that employees
>report periodically on the status of the leave
>and continued intentions to return to work.
>Employers may not ask for such updates more
>frequently than once every thirty (30) days....
>Since the last Certification we received was
>dated xx/xx/xxxx, we would like you to have the
>physician treating your family member provide us
>with an update on the need for your intermittent
>leave. Attached you will find another
>Certification of Health Care Provider Form for
>you to have completed....
>Please return this form to us within 15 days (by
>xx/xx/xxxx). It can be faxed to my attention
>at....
>Failure to return this form by xx/xx/xxxx may
>jeopardize your job protection under the FMLA
>and may result in denial of future time off
>under FMLA as well."
>
>
>Thoughts on this?


I think that will be fine; but, I would caution about 'I would like you to return this form' and would instead say, 'You must return the certification form to my office no later than'. Her lawyer would claim that you were only suggesting that she comply by a certain date. Leave no doubt. I would also leave out the part that quotes the regs as saying you may ask for recertification. If that needs to come out later, it will simply come out as a matter of law. You need not include it. Go for it. PS: Certified Mail. Return Receipt Requested. Staple returned green card to your copy of letter when you get it back.

KP68

Just an update on this one, as it's become very interesting.... First let me start by saying, "Be careful what you ask for" when you request this info. I just got the recert back from this employee. Not only does it say it is to continue to be every Thursday to care for her family member, but now it's extended until the end of the year!!

KP68

I need to bring this one up again....since the recert I received has now extended her absence every Thursday until the end of the calendar year, can I request a recert every 30 days going forward, or do I need a reason to do so??

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 04-30-04 AT 04:29PM (CST)[/font][br][br]29CFR825.308(b)(2): "For FMLA leave taken intermittently or on a reduced leave schedule basis, the employer may not request recertification in less than the minimum period specified on the certification as necessary for such leave (including treatment) unless one of the conditions set forth in (three other sections) is met." Those three exceptions that would allow you to recert prior to 12/31/04 are the employee requests extension, circumstances in the cert have changed, or you receive info that casts doubt on the validity of the cert.

Save yourself the ulcer. Let the ee burn her/his FMLA.