New FMLA Cert May be Requested in 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.