New FMLA Cert May be Requested in New Leave Year

October 26, 2005 ( - The Department of Labor (DoL) has confirmed that an employer may insist on new medical certification, not just recertification, for an employee's first Family and Medical Leave Act (FMLA) absence in a new leave year.

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.