Consequences for Failure to Recertify
Q. An employee had to recertify his qualifying condition because of an established pattern of potential Family and Medical Leave Act (FMLA) misuse, but he failed to cooperate with the recertification process and didn’t provide the requested information. If he seeks FMLA protection for future absences, should we deny the request, or are we required to issue a new rights and responsibilities notice and give him 15 days to provide the recertification information?
A. Under the Family and Medical Leave Act (FMLA), an employer is permitted to adopt a policy requiring a medical certification from the employee when an employee provides notice of a need for FMLA leave. When required by the employer, the employee is responsible to furnish a complete and sufficient certification within 15 calendar days (absent any extenuating circumstances like a medical emergency) to support the request for FMLA leave. Under circumstances including the above, where the employer receives information that casts doubt about the validity of the certification or need for leave, the employer is permitted to request recertification.
Consequences for an employee’s failure to provide the certification or recertification in a timely manner may include denial of the request for FMLA leave, as long as the employee was warned of the anticipated consequence at the time the certification was requested. In the case of recertification, the employer is allowed to deny FMLA protection until the employee produces a sufficient recertification for his qualifying condition. Unless your employee seeks leave for a separate qualifying condition or circumstance, you may continue to deny FMLA protection until he complies with the recertification request.
Jason R. Mau is a shareholder in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or by sending an email to jmau@parsonsbehle.com.
