(a) General. An employer may require that an employee's leave to
care for the employee's covered family member with a serious health
condition, or due to the employee's own serious health condition that
makes the employee unable to perform one or more of the essential
functions of the employee's position, be supported by a certification
issued by the health care provider of the employee or the employee's
family member. An employer may also require that an employee's leave
because of a qualifying exigency or to care for a covered servicemember
with a serious injury or illness be supported by a certification, as
described in Sec. Sec. 825.309 and 825.310, respectively. An employer
must give notice of a requirement for certification each time a
certification is required; such notice must be written notice whenever
required by Sec. 825.300(c). An employer's oral request to an employee
to furnish any subsequent certification is sufficient.
(b) Timing. In most cases, 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, or, in the
case of unforeseen leave, within five business days after the leave
commences. The employer may request certification at some later date if
the employer later has reason to question the appropriateness of the
leave or its duration. The employee must provide the requested
certification to the employer within 15 calendar days after the
employer's request, unless it is not practicable under the particular
circumstances to do so despite the employee's diligent, good faith
efforts or the employer provides more than 15 calendar days to return
the requested certification.
(c) Complete and sufficient certification. The employee must
provide a complete and sufficient certification to the employer if
required by the employer in accordance with Sec. Sec. 825.306,
825.309, and 825.310. The employer shall advise an employee whenever
the employer finds a certification incomplete or insufficient, and
shall state in writing what additional information is necessary to make
the certification complete and sufficient. A certification is
considered incomplete if the employer receives a certification, but one
or more of the applicable entries have not been completed. A
certification is considered insufficient if the employer receives a
complete certification, but the information provided is vague,
ambiguous, or non-responsive. The employer must provide the employee
with seven calendar days (unless not practicable under the particular
circumstances despite the employee's diligent good faith efforts) to
cure any such deficiency. If the deficiencies specified by the employer
are not cured in the resubmitted certification, the employer may deny
the taking of FMLA leave, in accordance with Sec. 825.313. A certification
that is not returned to the employer is not considered incomplete or
insufficient, but constitutes a failure to provide certification.
(d) Consequences. At the time the employer requests certification,
the employer must also advise an employee of the anticipated
consequences of an employee's failure to provide adequate
certification. If the employee fails to provide the employer with a
complete and sufficient certification, despite the opportunity to cure
the certification as provided in paragraph (c) of this section, or
fails to provide any certification, the employer may deny the taking of
FMLA leave, in accordance with Sec. 825.313. It is the employee's
responsibility either to furnish a complete and sufficient
certification or to furnish the health care provider providing the
certification with any necessary authorization from the employee or the
employee's family member in order for the health care provider to
release a complete and sufficient certification to the employer to
support the employee's FMLA request. This provision will apply in any
case where an employer requests a certification permitted by these
regulations, whether it is the initial certification, a
recertification, a second or third opinion, or a fitness for duty
certificate, including any clarifications necessary to determine if
such certifications are authentic and sufficient. See Sec. Sec.
825.306, 825.307, 825.308, and 825.312.
(e) Annual medical certification. 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 (as defined in Sec. 825.200), the employer
may require the employee to provide a new medical certification in each
subsequent leave year. Such new medical certifications are subject to
the provisions for authentication and clarification set forth in Sec.
825.307, including second and third opinions.
[73 FR 68100, Nov. 17, 2008]
