(a) Foreseeable leave. In the case of foreseeable leave, if an
employee fails to provide certification in a timely manner as required
by Sec. 825.305, then an employer may deny FMLA coverage until the
required certification is provided. For example, if an employee has 15
days to provide a certification and does not provide the certification
for 45 days without sufficient reason for the delay, the employer can
deny FMLA protections for the 30-day period following the expiration of
the 15-day time period, if the employee takes leave during such period.
(b) Unforeseeable leave. In the case of unforeseeable leave, an
employer may deny FMLA coverage for the requested leave if the employee
fails to provide a certification within 15 calendar days from receipt
of the request for certification unless not practicable due to
extenuating circumstances. For example, in the case of a medical
emergency, it may not be practicable for an employee to provide the
required certification within 15 calendar days. Absent such extenuating
circumstances, if the employee fails to timely return the
certification, the employer can deny FMLA protections for the leave
following the expiration of the 15-day time period until a sufficient
certification is provided. If the employee never produces the
certification, the leave is not FMLA leave.
(c) Recertification. An employee must provide recertification
within the time requested by the employer (which must allow at least 15
calendar days after the request) or as soon as practicable under the
particular facts and circumstances. If an employee fails to provide a
recertification within a reasonable time under the particular facts and
circumstances, then the employer may deny continuation of the FMLA
leave protections until the employee produces a sufficient
recertification. If the employee never produces the recertification,
the leave is not FMLA leave. Recertification does not apply to leave
taken for a qualifying exigency or to care for a covered servicemember.
(d) Fitness-for-duty certification. When requested by the employer
pursuant to a uniformly applied policy for similarly-situated
employees, the employee must provide medical certification, at the time
the employee seeks reinstatement at the end of FMLA leave taken for the
employee's serious health condition, that the employee is fit for duty
and able to return to work (see Sec. 825.312(a)) if the employer has
provided the required notice (see Sec. 825.300(e)); the employer may
delay restoration until the certification is provided. Unless the
employee provides either a fitness-for-duty certification or a new
medical certification for a serious health condition at the time FMLA
leave is concluded, the employee may be terminated. See also Sec.
825.213(a)(3).
[73 FR 68106, Nov. 17, 2008]
