(a) 30-day rule. An employer may request recertification no more
often than every 30 days and only in connection with an absence by the
employee, unless paragraphs (b) or (c) of this section apply.
(b) More than 30 days. If the medical certification indicates that
the minimum duration of the condition is more than 30 days, an employer
must wait until that minimum duration expires before requesting a
recertification, unless paragraph (c) of this section applies. For
example, if the medical certification states that an employee will be
unable to work, whether continuously or on an intermittent basis, for
40 days, the employer must wait 40 days before requesting a
recertification. In all cases, an employer may request a
recertification of a medical condition every six months in connection
with an absence by the employee. Accordingly, even if the medical
certification indicates that the employee will need intermittent or
reduced schedule leave for a period in excess of six months (e.g., for
a lifetime condition), the employer would be permitted to request
recertification every six months in connection with an absence.
(c) Less than 30 days. An employer may request recertification in
less than 30 days if:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have
changed significantly (e.g., the duration or frequency of the absence,
the nature or severity of the illness, complications). For example, if
a medical certification stated that an employee would need leave for
one to two days when the employee suffered a migraine headache and the
employee's absences for his or her last two migraines lasted four days
each, then the increased duration of absence might constitute a
significant change in circumstances allowing the employer to request a
recertification in less than 30 days. Likewise, if an employee had a
pattern of using unscheduled FMLA leave for migraines in conjunction
with his or her scheduled days off, then the timing of the absences
also might constitute a significant change in circumstances sufficient
for an employer to request a recertification more frequently than every
30 days; or
(3) The employer receives information that casts doubt upon the
employee's stated reason for the absence or the continuing validity of
the certification. For example, if an employee is on FMLA leave for
four weeks due to the employee's knee surgery, including recuperation,
and the employee plays in company softball league games during the
employee's third week of FMLA leave, such information might be
sufficient to cast doubt upon the continuing validity of the
certification allowing the employer to request a recertification in
less than 30 days.
(d) Timing. The employee must provide the requested recertification
to the employer within the timeframe requested by the employer (which
must allow at least 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.
(e) Content. The employer may ask for the same information when
obtaining recertification as that permitted for the original
certification as set forth in Sec. 825.306. The employee has the same
obligations to participate and cooperate (including providing a
complete and sufficient certification or adequate authorization to the
health care provider) in the recertification process as in the initial
certification process. See Sec. 825.305(d). As part of the information
allowed to be obtained on recertification for leave taken because of a
serious health condition, the employer may provide the health care
provider with a record of the employee's absence pattern and ask the
health care provider if the serious health condition and need for leave
is consistent with such a pattern.
(f) Any recertification requested by the employer shall be at the
employee's expense unless the employer provides otherwise. No second or
third opinion on recertification may be required.
[73 FR 68103, Nov. 17, 2008]
