Sick note.jpgIt’s webinar time! 

FMLA Medical certification is designed to help employers better understand an employee’s medical condition and their need for time off from work. So, why does such a helpful tool tend to create angst, confusion and frustration within the employer community?

Let’s tackle medical certification head on! Please join us on Thursday, December 5, 2013 (12:00 – 1:15p.m. central time) for “Conquering the FMLA Medical Certification Process: Best Practices for Employers.” I will be joined by my friend and fellow FMLA nerd, Matt Morris, Vice President, FMLASource, who promises (along with me) to keep cheesy jokes to no more than two during our session.

I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover. And the best part? It’s FREE! So, you have no excuse not to join us, right!?!

Overview of the Webinar

In this complimentary webinar, Matt and I will cover FMLA medical certification in detail and employ case studies throughout to help employers deal with the most confusing and maddening medical certification conundrums.

To heck with the basics about medical certification.  We’re going to dig into some difficult issues. Using real life situations from our own experience in dealing with the FMLA, we will cover topics such as:

  • Common employer questions and missteps in the medical certification process
  • Best practices for employers when an employee fails to return medical certification
  • Incomplete or Confusing Certification – Does the Employer Trash it and start over
  • Fighting the “Friday-Monday Leave Act” – how employers should use recertification when they see a pattern of misuse or suspect FMLA abuse
  • Managing the second/third opinion process

We look forward to your participation.

Q: We have an exempt, managerial employee who in this past year took all 12 weeks of FMLA leave, and six additional weeks of unpaid leave.  He also was intermittently absent for digestive problems to the tune of about four weeks.  We’re now in a new FMLA year and he is requesting FMLA leave again. Is he even eligible for FMLA leave since he didn’t work 1,250 hours?

A: Exempt employees pose a particular dilemma for employers under the FMLA because the FMLA regulations effectively presume that they always are eligible for FMLA leave, at least from an “hours worked” standpoint, and the employer has the burden to prove otherwise.  Keep this key provision in mind from the regulations (at 29 C.F.R. 825.110(c)(3)):

In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked . . . the employer has the burden of showing that the employee has not worked the requisite hours.  (My italics, not DOL’s)

Very few employers maintain hours worked for their exempt employees.  So, it may be exceedingly difficult to establish that the employee above has not worked the requisite 1,250 hours required by the FMLA.  Using this employee as an example, let’s assume he typically would have worked around 1900 hours for the year (~48 weeks x 40 hours/wk).  He took 22 weeks of leave in the previous FMLA 12 months, which accounts for about 880 hours (22 weeks x 40 hours/wk).  1900 – 880 = 1020 hours worked  

This falls a fair amount short of the requisite 1,250 hours required under the FMLA.  Does this simple math prove that this exempt employee is not eligible for FMLA leave?  Not yet.  Check out my tips below.

This FMLA regulation is particularly difficult to apply to school teachers.  A recent case, McArdle v. Town of Dracult/Dracult Public Schools (pdf), highlights this issue.  Here, a middle school teacher was going through a divorce, which caused an onset of depression and anxiety.  As a result, he worked about 660 hours during one school year.  When he sought FMLA leave the following school year, his school district said “No soup for you,” and denied his FMLA leave (eventually leading to his termination).  The employee later filed an FMLA interference claim.

The district’s clever attorneys argued that, even taking into account the number of hours the employee graded papers and wrote journal articles outside of regular work hours, it was entirely implausible that the teacher worked anywhere close to 1,250 hours.  The court agreed with the clever attorneys and dismissed the employee’s FMLA claims.

Insights for Employers

A couple of things to keep in mind when it comes to employee eligibility for FMLA leave:

  1. Where an exempt employee’s eligibility for FMLA leave is in question, keep in mind that employers must clearly demonstrate the employee did not work 1,250 hours.  In the example of our employee in the question posed above, can you show, for instance, that the employee regularly works a typical 40-hour a week schedule in the office and then performs little or no work outside regular work hours?  Can you show that he never sends or reviews work email outside work hours?  Or that he never uses his cell phone for work after hours?  Is your exempt employee covered by a collective bargaining agreement or other employment agreement that sets out hours worked?  Does your employee waste oodles of useless time blogging about topics like medical leave? [Bite your tongue!] These questions and others like it are helpful to better assess the total hours worked by your employee.
  2. Remember that eligibility is tested every time the employee requests leave for a “different FMLA-qualifying reason.”  In other words, if the reason for leave is the same and the employee previously was eligible within the same FMLA year, the employee is entitled to take leave in this instance.  However, if the employee requests leave for a new qualifying reason in the same FMLA year, or if it’s for the same reason within a new FMLA year, the employer should re-test eligibility.  See 29 C.F.R. 825.300(b).

Who ever said FMLA was boring?

Linette Williams-Grant had a week worthy of Judith Viorst’s classic children’s story Alexander and the Terrible, Horrible, No Good, Very Bad Day, which (as an aside) is one of my all time favorites to read to my young children, particularly after a bad day.

How bad was Linette’s week?  It started with her employer’s surveilance of her activities and ended with her own minister confirming that she had been taking FMLA leave once each week to attend a class at church that had nothing to do with her apparent medical condition.

It’s not that Linette didn’t bring this on herself, but her tale still is a sad one.  Yet, it proves to be good fodder for employers considering whether to conduct an investigation into suspected FMLA abuse.

The Facts

Here’s the quick story: Linette worked for Wisconsin Bell as a telecommunications specialist, which largely is a sedentary position.  She also suffered from a host of medical issues: back pain, hip pain, osteoarthritis, radiculopathy, anxiety, panic disorder and depression.  You name it, and it sounds like Linette had it.  These conditions apparently were particularly difficult during prolonged periods of standing or sitting.  According to her doctor, Linette was unable to work when these conditions flared up, so he placed her on a generous intermittent FMLA leave cycle. In short, when she had these conditions, she couldn’t work.

For years, Linette’s FMLA leave didn’t garner too much attention until her supervisor noticed this: Linette would stop calling in sick whenever she had exhausted her annual FMLA allotment, and she would resume calling in sick and requesting FMLA leave after her annual FMLA allotment was replenished. Interestingly, her supervisor also learned that Linette would often check in to determine when her annual FMLA allotment would replenish.  The employer chose not to take action now, but rather, it studied Linette’s attendance patterns for about six months.  In those six months, Wisconsin Bell found that Linette would often use FMLA leave in conjunction with days off or on a weekend (when she was scheduled to work).

At that point, Ma Bell felt she had enough to ratchet up the review.  As a result, it conducted surveilance on Linette’s activities on two separate days about one month apart.  On the first occasion, she traveled to her church for one hour to “receive prayer,” as Linette would later explain.  (A quick search of a local blog also uncovered that Linette had been attending weekly classes there at the same time she should have been at work.)  On the second occasion, Linette traveled two hours from her home to a vacation home where she spent the day.

The Investigation

After surveiling her, Wisonsin Bell confronted Linette with the video surveilance.  When the video showed her walking into the church building, Linette denied any affiliation with the church or that she attended classes there.  However, after being confronted with the blog entry, she then acknowledged that she went there on one occasion to “receive prayer.” As to the video of her trip to the vacation home, Linette claimed she “had no memory” of the trip, which was just a few weeks earlier. [Huh?]

After the investigatory meeting with Linette, her employer was convinced it needed to close the loop on Linette’s church meeting, so it went right to the source: her minister.  Linette’s pastor sung like a church canary, as he eagerly confirmed that Linette had been attending classes there every week for the past three months — all at a time when she should have been at work. It turns out that Linette called off sick or used FMLA leave on these occasions. [Me thinks the pastor did not realize he was unwittingly ratting out one in his own flock, but that’s beside the point.]

Insights for Employers

The dismissal of Linette’s FMLA lawsuit was a foregone conclusion.  Indeed, the court quickly disposed of her FMLA interference and retaliation claims, finding that Ma Bell clearly had an honest suspicion or belief that she had abused FMLA leave on several occasions, thereby supporting her termination.  (You can access the Williams-Grant v. Wis. Bell case here.)  We’ve discussed this concept before, and my friend Jon Hyman covered it in another recent case as well.

Let’s keep in mind, however, that the dismissal was set up by the employer’s great investigatory work which, in turn, is a lesson for the rest of us:

  1. Take the time to investigate.  When Ma Bell noticed the pattern of Linette’s suspicious leave activity, it didn’t react rashly.  Rather, it took the next several months to study Linette’s leave requests and patterns.  This patience paid off — it further supported the employer’s belief that Linette was abusing leave, and it served as the foundation for surveilance, which ultimately carried the day for the employer.
  2. Don’t be afraid to challenge all that is sacred.  I can only imagine those Catholic nuns who taught me as a young kid are rolling over in their graves, but when an employee seeks FMLA leave to go to church, this still feels and smells like FMLA abuse.  Of course, employers should be mindful that a meeting at church could conceivably be FMLA-related (e.g., for treatment, perhaps?), but in this instance, it didn’t take much to tell it was a cover up.  Bottom line: even if the reason given by the employee involves going to church (or a similar faith-filled commitment), it doesn’t automatically mean the issue is off limits to some level of skepticism.
  3. But be mindful of calling the Pastor.  Did anyone think that the call to the Pastor might have been a bit too much, or like me, that it was a potential O.J. Simpson moment [think: “If the glove don’t fit, you must acquit.”]?  There clearly is a risk in calling someone like the employee’s Pastor in this situation. They might be unwilling to provide any information or be reluctant to talk.  In an effort to protect their own, they may actually give you exactly what you don’t want to hear.  There isn’t necessarily a right or wrong answer here, but be careful of the paths you head down in an investigation. Based on the video surveilance and Linette’s apparent blog activity, the employer arguably had enough evidence to support an “honest belief” defense.  Of course, the Pastor’s admission sealed the deal, but it also could have muddied the waters.
  4. In the investigative stage, seek admissions one by one to bolster your case.  I’ve talked about this before, but I liked the way the employer first sought out the employee’s story, then showed her the video after she was not cooperative, then showed her the damning blog post after she continued to cover up her story.  This methodical approach was key to tying the employee up in a web of lies that a court easily understood and bought into later on.  Good work.

In all, a solid decision for employers with some great guidance for the rest of us in the employer community.

As for Linette’s bad day, just as Alexander proclaimed on his terrible, horrible, no good, very bad day: they say some days are like that . . . even in Australia!

spanish posterOver the past several months, a number of employers have asked me when the Department of Labor would be issuing the Spanish version of its new DOL poster (which accounts for the new regulations issued earlier this year).  The time has come – the poster is here. 

Under the FMLA, an FMLA-covered employer must post a copy of the General FMLA Notice in each location where it has any employees (even if there are no FMLA-eligible employees at that location). According to the FMLA rules, the notice must be posted “prominently where it can be readily seen by employees and applicants for employment.”

Per the DOL, where an employer’s workforce “is comprised of a significant portion of workers who are not literate in English, the employer shall provide the general notice in a language in which the employees are literate.” 29 C.F.R. 825.300(a)(4)

The Spanish version can be found here (pdf).  

In a previous post, we provided additional guidance on why and where employers need to post this DOL poster.  

While I have you, note that the DOL also has a Spanish version of its FMLA Guide (pdf).  For the reasons I stated in another previous blog post, this guide is valuable to employers because it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process.

same sex marriage

We have been sitting on the edge of our seat [ok, perhaps I’m on the seat alone] as we await the Department of Labor’s anticipated regulations interpreting how the Supreme Court’s DOMA decision impacts the definition of “spouse” under the Family and Medical Leave Act.

As you may recall, I predicted earlier this year that the DOL likely would adopt a “state of celebration” rule, in which spousal status is determined based on the law of the State where the employee was married.  Although we don’t have anything definitive, the DOL shot us a sneak preview last week of what this proposed FMLA regulation might look like.

In Technical Release 2013-04 issued on September 18, 2013, the DOL takes the position that — at least with respect to employee benefit plans — the terms “spouse” and “marriage” in Title I of ERISA and its implementing regulations “should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.”  This guidance comes on the heels of the IRS’ own guidance, which late last month confirmed its position that a same-sex couple is considered married (for federal tax purposes) so long as the couple was married in any state (or U.S. territory or foreign country) that recognizes same-sex marriage.

In a DOL press release announcing its new guidance, Secretary Thomas Perez stated that the Supreme Courts Windsor (DOMA) decision “represents a historic step toward equality for all American families, and I have directed the department’s agency heads to ensure that they are implementing the decision in a way that provides maximum protection for workers and their families.”

State of celebration rule?  It’s likely only a matter of time.

Let’s hear from you, DOL.  We await your guidance on our favorite federal law!

Photo credit: WillisWire

Pink floyd.jpgHello…hello…hello…is there anybody in there? Just nod if you can hear me. Is there anyone home?  

Have your employees have become so evasive in their requests for medical leave that you feel like signing Pink Floyd’s “Comfortably Numb” to get them to talk? Have no fear — you don’t have to become that numb in order to effectively administer FMLA in these situations.

Take heart — in case after case in 2013, federal courts everywhere have been slapping down FMLA lawsuits where the employee either: 1) failed to follow the employer’s customary call-in procedures; or 2) neglected to provide the employer enough facts to indicate that an absence might be covered by FMLA. We have one good thing going: courts are far less forgiving when employees don’t properly communicate with their employers about their need for leave.  As a result, I encourage employers to be more aggressive when it comes to requiring notice under the FMLA.

Here are a few recent real-life examples that should bolster our confidence as employers:

  • As Eric Meyer noted recently in his employment blog, an employee who needed hernia surgery (an absence that otherwise would be covered by FMLA leave) assumed that he did not need to call in his absences while he was out for the surgery because he had previously met with his employer to discuss his upcoming surgery.  However, the employer’s policy required him to call in more frequently, and when it didn’t, his failure to do so equated to a bunch of unexcused absences — and his termination.  White v. Dana Light Axle Manufacturing (pdf)
  • A federal appellate court ruled earlier this summer that an employee’s text message requesting to be taken off 24-hour-call duty on one night was insufficient to put the employer on notice that she was requesting FMLA leave to care for her father. Lanier v. Univ. of Texas Southwestern Medical Cntr. (pdf)  Same result in another “texting” case, where the employee simply texted that she was not well, and even after much prompting, texted, “As of today, I will be off until July 12th per my doctor for medical reasons.” Here, the court found these messages were insufficient to trigger FMLA protections and the plaintiff’s FMLA claims were dismissed.  Banaszak v Ten Sixteen Recovery Network (pdf)
  • Just last week, a federal trial court knocked out FMLA claims by a fire battalion chief because he simply failed to inform the fire department that he would be taking several days of sick for a follow-up procedure on his heart.  When pushed, the employee could not remember if he told his employer any details whatsoever as to the reasons why he was missing work.  This level of evasiveness doesn’t cut it when it comes to the FMLA. Freeman v. City of Little Rock (pdf)

Insights for Employers

What are the takeaways from these cases? 

  1. Maintain effective call-in procedures:  Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.
  2. Require actual information from your employees! How many of you allow your employees to leave cryptic messages for you on Company voicemail when reporting an absence? Do you have a practice of returning these voicemail messages? How many of you actually probe with further questions the reason for the call off? A couple of thoughts to obtain the information you need to determine whether FMLA applies.

• First, include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you’ll also want to include expectations for completing a leave of absence request form, which I also recommend.) My “model” policy provision looks something like this:

• When you contact Human Resources to report your need for leave, you must provide at least the following information:

o The specific reason for your absence, with sufficient information to allow the [Employer] to determine whether the FMLA may apply to your request;

o When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

o A telephone number where you may be reached for further information.

• Second, ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play. As you have read in my previous blog posts, I recommend using a script of questions to assist you in your efforts.

If all else fails, perhaps you consider belting out a few bars from “Comfortably Numb” [“Relax. I need some information first. Just the basic facts. Can you show me where it hurts?“]. That sounds a little creepy, so don’t do that.  

But you get my point.

stormtrooper-1343772_1280

Do you know what’s particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!]

The requirement that an employer return an employee to the same or equivalent position at the end of FMLA leave.

Returning an employee to the same position is easy enough to grasp.  The same is the same is the same.  But often, the same isn’t available, so the employer is left wondering what exactly is an equivalent position?  Here’s where the FMLA gets oppressive.  Under the FMLA regulations, an equivalent position is:

one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

Several words here scare me: virtually identical, same, must involve, must entail.  Does this effectively mean that the equivalent position must be identical or the same?  Just about.

JP Morgan Chase recently learned this the hard way.

The Facts

Paula Crawford worked for JP Morgan Chase as a project manager.  In this role, she was required to review government regulations and contract servicing agreements.  The position also allowed her to apply legal knowledge she acquired during her studies in law school.

From December 2007 to February 2008, Crawford took leave for depression and anxiety.  Upon her return, her employment looked something like this:

  • She was placed into a new position: Quality Analyst II, which maintained the same pay, benefits, work hours and location
  • She performed more clerical duties
  • She reported to a former peer
  • The new position did not require the same use of legal expertise
  • Her opportunities for career advancement were diminished in the new role

The Bank’s attorneys argued that Crawford’s new position was an equivalent position because it involved the same salary and benefits.  But herein lies the problem: all too many employers presume that if they provide the employee the same pay and benefits and return him/her to a position that’s “same enough,” they’ve met their obligations under the FMLA.

Not so fast.

Remember those oppressive words above: the new position must be “virtually identical” to the former position, and it must maintain the same privileges, perquisites (“perks”) and status.  The FMLA regulations also tell us that effectively the same skill, effort, responsibility, and authority must be employed, too.  [Read: employers have very little wiggle room.]

The Ruling and Insights for Employers

The court refused to dismiss Crawford’s case above, finding that the new position: 1) did not offer the same career advancement; 2) did not require a similar level of education and training; 3) increased her clerical duties; and 4) did not allow her to utilize her legal skills.  As a result, it found that a jury would have to decide that the new position was not equivalent under the FMLA. Crawford v. JP Morgan Chase (pdf)

What do employers learn from this?

  1. If pressed in a lawsuit, employers must do a better job explaining why the position is virtually identical.  Assuming the facts are true, the bank didn’t do that here, and even worse, it allowed the employee through her own testimony to offer her own spin on the duties of the new position, all of which were not contested by the bank.  If the quality analyst position was indeed the same or virtually identical, then show it!
  2. *Virtually identical* means just that — that is, the new position must be pretty darn close to the last one.  It should not take on more clerical duties or offer a more trecherous route for advancement through the company.
  3. Read carefully part of the court’s opinion: “Even if both [of Crawford’s] positions carried equal pay and benefits, if the Quality Analyst II position did not require a similar level of training and education, then it was not equivalent in terms of status and thus the positions would not be equivalent under the FMLA.”  Seems a bit harsh, as it doesn’t take into account the diversity of positions potentially available in a typical company, but this is what the courts are saying, so we have to take it seriously.
  4. Finally, be mindful of the status of the new position, yet another requirement under the regulations. For example, when you offer a more difficult road for advancement within the company, you arguably change the status of the position, making it difficult to knock out an FMLA claim.

baby yawn.jpgOf course, this kind of stuff happens while I’m on vacation and away from my computer.  Last week, the Wall Street Journal created a bit of an uproar when it reported that the Department of Labor had just issued “regulatory guidance to affirm that same-sex married couples can take a leave from their jobs to care for an ill spouse.” This comes as a result of the Supreme Court’s Windsor decision, which I previously highlighted here.

What was the DOL’s regulatory guidance, you ask? As Dan Schwartz reports in his employment law blog, the DOL simply updated its FMLA Fact Sheets to reflect that the definition of “spouse” under the FMLA also includes those individuals who have entered into a same-sex marriage. Here’s the specific provision from the new Fact Sheet:

Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.  [My emphasis, not DOL’s.]

This update is hardly surprising. In fact, one might have expected it. On the other hand, the Fact Sheet did not address the definition of “spouse” for those employees in a same-sex marriage who reside in states that do not recognize same-sex marriage.  That’s what we really want to know, right? As I discussed in my previous post, this issue will require some actual regulatory guidance instead of a fairly straighforward change on a Fact Sheet.

Interestingly, in other housekeeping news, the DOL also has indicated that a 1998 opinion letter regarding DOMA’s application to the FMLA is under review in light of the Windsor decision. 

Even the DOL thinks these tweaks are a bit of a yawner since they must have been anticipated. Take a look at their own blog entry here that it posted late last week.

Insights for Employers

Although the Fact Sheet update is hardly earth-shattering news, this tweak by the DOL serves as a reminder to employers that they need to carefully consider what changes they should make now to FMLA policies, forms and procedures to remain compliant with DOL’s updated interpretation of the definition of spouse.  

In particular, if you have employees who reside in states where same-sex marriage is legal, (based on my count, that’s California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia), you should work with your employment counsel promptly to make these changes. 

Now back to that nap…

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.

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.