take two.jpgThe feedback from last week’s blog post on annual FMLA certification came fast and furious.  Most of it was complimentary (thank you!), but several of my fellow FMLA nerds raised an interesting issue.  They noted that the FMLA regulation covering “annual” certifications does not specifically state that the certification in the new FMLA year must come in conjunction with an absence.  So, they question whether an employer actually has to wait for the first absence in the new FMLA year before seeking new certification.

At first glance, I see where they are coming from. The regulation on annual certifications is not terribly clear.  It states simply:

Where the employee’s need for leave due to the employee’s own serious health condition, or the serious health condition of the employee’s covered family member, lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year.  29 C.F.R. 825.305(e)

An employer might read this provision to mean that it can ask for annual certification at any point in a new FMLA year — with or without a request for leave or an absence by the employee. However, when this regulation was addressed by the Department of Labor during its changes to the regs in late 2008, the DOL indicated that it was relying heavily on an opinion letter it issued on this topic back in 2005.  This essentially answers the outstanding question.  In the opinion letter, the DOL stated:

It is our opinion that an employer may reinitiate the medical certification process with the first absence in a new 12-month leave year . . . This is the case despite the fact that the employer had requested recertification in the previous 12-month leave year. 

So, DOL takes the position annual certification can be done with the first absence in the new FMLA year.  To be clear, if I were litigating the issue, I wouldn’t shut the door to an argument that the DOL’s failure to be more specific in the regulations should be construed against the agency.  But it also seems apparent that DOL intended for an annual certification in a new FMLA year to be subject to the same standards as an initial certification under 29 C.F.R. 825.305(b), which allows the employer to seek initial certification only when the employee first requests leave under the Act.

Still not convinced?  Let’s discuss — I welcome your feedback.