SHRM reports that in its opinion letter, the DoL drew an analogy between medical certification in a new leave year and recalculating the 1,250 hours of service for FMLA eligibility. In a previous opinion letter, the DOL said an employer may reassess an employee’s FMLA eligibility when an employee on intermittent leave seeks time off in a new leave year.
The DoL said employers should be allowed to ask for new medical certifications in the new leave year. A second and third medical opinion on the new certification also could be requested, as appropriate, even if the serious health condition was certified previously and FMLA leave was approved in a previous 12-month period, according to the opinion letter (FMLA2005-2-A), SHRM said. Second and third opinions are allowed if the employer is doubtful of the qualifying event, and the cost is at the employer’s expense. If a third opinion is requested, it is a binding opinion.
The DoL said the leave year may be calculated in one of four ways: a calendar year, any fixed 12-month leave year, a 12-month rolling period measured forward from the date an employee’s first FMLA leave begins, and arolling 12-month period measured back from the date an employee uses any FMLA leave. The twelve month period must be applied consistently and uniformly to all employees.
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