The employer may not, however, require the employee to return to work early by offering the employee a light duty assignment. Are there any restrictions on how the employee can spend their time while on leave?
The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave. Yes, they may make inquiries of the employee. To make such contact, the employer must use a health care provider, human resources professional, leave administrator, or management official.
The inquiry may not seek additional information regarding your health condition or that of a family member. How often can an employer require an employee to re-certify their need for FMLA leave?
Typically, an employer may request recertification documentation no more often than every 30 days except as indicated below and only in connection with an absence by the employee, unless the medical certification indicates that the minimum duration of the condition is more than 30 days, in which case the employer must wait until that minimum duration expires before requesting a recertification.
For example, if the medical certification states that an employee will be unable to work, whether continuously or on an intermittent basis, for three months, the employer must wait three months before requesting a recertification.
An employer may request recertification in less than 30 days if:. In all cases, the employer may request a recertification of a medical condition every six months in connection with an absence by the employee. Can an employer refuse to grant an employee FMLA leave? An employee may not be denied FMLA leave provided:. If an employer fails to tell an employee that the leave is FMLA leave, can the employer count the time the employee has already been off against the 12 weeks of FMLA leave?
The employer may retroactively designate leave as FMLA leave with appropriate notice to the employee provided that the employer's failure to timely designate leave does not cause harm or injury to the employee by lessening future leave time. For example, if an employer was put on notice that an employee needed FMLA leave and failed to designate the leave properly, but the employee's own serious health condition prevented him or her from returning to work during that time period regardless of the designation, the employee is not considered to have suffered harm due to the failure to properly designate the leave as FMLA.
However, if an employee took leave to provide care for a son or daughter with a serious health condition believing it would not count toward his or her FMLA entitlement, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of the employer's failure to designate properly.
The employee might establish this by showing that he or she would have arranged for an alternative caregiver for the seriously-ill son or daughter if the leave had been designated timely.
In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave. Does the employee have to provide the employer with medical records for leave due to a serious health condition? Medical records are not required to support a requested leave due to a serious health condition, however, medical certification from the healthcare provider confirming that a serious health condition exists is.
A medical certification is a single document that confirms the serious health condition in question. Can an employee be terminated while out on FMLA leave? For example, if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee may be laid off even while taking FMLA leave. If the employee is laid off, the employer's obligations under FMLA stop as of the effective date of the layoff.
An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists. What if I do not want my employer to know about my medical condition? If an employer requests it, an employee is required to provide a complete and sufficient medical certification in order to take FMLA-protected leave due to a serious health condition.
How soon after I request leave does my employer have to request a medical certification of a serious health condition? Under the regulations, an employer should request medical certification, in most cases, at the time an employee gives notice of the need for leave or within five business days.
If the leave is unforeseen, the employer should request medical certification within five days after the leave begins. An employer may request certification at a later date if it has reason to question the appropriateness or duration of the leave.
What happens if my employer says my medical certification is incomplete? An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency.
The regulations require that the employer state in writing what additional information is necessary to make the certification complete and sufficient. May my employer contact my health care provider about my serious health condition? Employers may not ask the health care provider for additional information beyond that contained on the medical certification form. An employer may not require an employee to sign a release or waiver as part of the medical certification process.
If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied. How often may my employer ask for medical certifications for an on-going serious health condition?
The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days.
For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee.
Additionally, the regulations codify a Wage and Hour opinion letter that stated that employers may request a new medical certification each leave year for medical conditions that last longer than one year.
Such new medical certifications are subject to second and third opinions. Janie takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks. Because her certification covers a six-week absence, her employer cannot ask for a recertification during that time. At the end of the six-week period, Janie asks to take two more weeks of FMLA leave; her employer may properly ask Janie for a recertification for the additional two weeks.
Joe takes eight weeks of FMLA leave for a back operation and intensive therapy, and gives his employer a medical certification that states that he will be absent for eight weeks. At the end of the eight-week period, Joe tells his employer that he will need to take three days of FMLA leave per month for an indefinite period for additional therapy; his employer may properly request a recertification at that time.
Six months later, and in connection with an absence for therapy, the employer may properly ask Joe for another recertification for his need for FMLA leave. Send Print Report. Bryan Cave Leighton Paisner. Published In: Eligibility. Eligibility Determination. Sick Leave. For the first eight weeks immediately following birth or placement, accrued sick leave may be applied.
For employees represented by collective bargaining agreements please refer to the leave of absence section in the appropriate contract. If sick leave is exhausted before the end of the eight-week period, accrued vacation leave, personal days, and available compensatory time off may be utilized. For the remaining four weeks available under FMLA, accrued vacation leave, personal days, and available compensatory time off must be utilized.
With approved medical certification, accrued sick leave may continue to be applied if the mother or child is ill. Contact the nearest office of the federal Wage and Hour Division, listed in most telephone directories under U. Government, Department of Labor.
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