busted2.jpgThe DOL is on a roll, and employers can’t be amused. Over the past few months, the Department of Labor seemingly has issued statement after statement after statement announcing settlements it has reached with various employers in conjunction with alleged FMLA violations. Heck, DOL now even has its own blog highlighting its recent FMLA enforcement. [Hey, where did they get that crazy idea!?!]

Whether it’s improperly denying FMLA leave, mishandling the medical certification process or fudging up return-to-work rules, employers have found themselves in the crosshairs of the DOL lately when it comes to FMLA.

One recent DOL press release stood out to me because it involved a mistake employers occasionally make in the medical certification and recert process.  In this case, the DOL accused a healthcare services company in New Mexico of automatically renewing medical certification requests from employees, even though the request didn’t involve an actual employee absence.

So, the situation goes something like this: let’s say an employer’s 12-month FMLA period is based on a calendar year: January 1 to December 31.  One of their employees, let’s call him A-Rod for fun, suffers from a condition that causes his muscles to inflate involuntarily, causing a very painful condition as well as a wee bit of a personality disorder.  When this condition flares up, A-Rod needs intermittent FMLA leave.  When the new FMLA year begins on January 1, the employer does not wait for A-Rod’s first absence associated with this unfortunate condition. Rather, it sticks him with a certification request shortly after the new year — completely unconnected to any leave request.  The employer administers it this way so that it can get ahead of the game and to ensure that certification is neat and efficient for the rest of the FMLA leave year.

Here, the employer’s *efficiency* violates the FMLA.  When it comes to medical certification, the FMLA rules are clear: 

the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter. . . 29 CFR 825.305(b)

Same holds true for recertification.  Under the regulations, employers may seek recertification at certain intervals or circumstances, but so long as it comes in conjunction with a request for leave. 29 CFR 825.308(a)(b)    

Employers should aggressively enforce their rights when it comes to FMLA, especially during the medical certification process.  However, let’s not go overboard.  Whether you have A-Rod on your team or not, medical certification and recertification requests can only come in conjunction with an employee’s actual request for leave.  If you stray from this rule, you risk becoming the DOL’s next press release.