28 Days Later? Passage of Time May Allow Employers to Recertify FMLA Claims

The Family and Medical Leave Act permits an employer to “require that [an] eligible employee obtain subsequent [medical] re-certifications on a reasonable basis.” The FMLA’s regulations define what constitutes a “reasonable basis.” Under the regulations, and employer cannot ask for a recertification more than once every 30 days, unless “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).”

In Graham v. Bluecross Blueshield of Tenn., the 6th Circuit recently held that the passage of time alone can constitute sufficiently changed circumstances to justify an employer’s early request for a recertification:

We agree with the district court’s ruling as to the reasonableness of BCBST’s request for recertification after Graham’s 28 consecutive absences, in that they constituted “significantly changed circumstances….” As the district court observed, this period of absenteeism was twice as long as Graham’s longest previous episode in March 2007.

Because the employee failed to respond to a lawful recertification request, the leave was not FMLA leave, and the employer was entitled to consider the absences as unexcused.

Managing FMLA leave, and particularly managing intermittent FMLA leave, is one of the most challenging tasks for employers. What qualifies as “significantly changed circumstances” will vary from case to case. Do not mistake this case as carte blanche to demand a recertification after every prolonged period of absence. Instead, consult with your employment counsel to determine the best course of action before your hasty actions get you in trouble under the FMLA.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.