September 23, 2016 / Published Work

FMLA: When may an employer seek recertification from employee’s physician?

An employee who has been taking intermittent leave under the Family and Medical Leave Act (FMLA) for treatment of a condition since June 2016 now requires surgery. Is the surgery considered a separate event, or is it a continuation of the prior treatments?

The surgery is a change in circumstances that permits an employer to seek a recertification from the employee’s physician. Employers may request recertification no more often than once every 30 days, or however long the certification form stated that the employee would need leave—whichever is longer. However, employers can request recertification every 6 months for a continuing condition and can require a new annual certification for a condition lasting more than one year. The exception to these rules is for a change in circumstances. Whenever there has been a change in circumstances – such as a surgery that would require an employee to be off work for a period of time rather than just intermittently – the employer may require a recertification regardless of how long it has been since the initial certification was submitted.

Whether the certification is considered a recertification or a new annual certification is important because they are treated differently. In the event that an employer has reason to doubt the validity of a certification, the employer may not seek second and third opinions from other physicians with regard to recertification, but additional opinions are permitted with regard to annual certifications. In your situation you may require that the employee submit a recertification, but you may not seek a second or third opinion with regard to such recertification.


Rachel Burke
Of Counsel

Porter Wright