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FMLA REQUEST UPDATE ON INTENT TO RETURN
Benefits & Compensation
FMLA REQUEST UPDATE ON INTENT TO RETURN
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My understanding is that employers may not require medical recertification more frequently than every 30 days.
However, I believe that employers may request periodic status updates from employees r
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Forums » Topic Forums » Benefits & Compensation » FMLA REQUEST UPDATE ON INTENT TO RETURN
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FMLA REQUEST UPDATE ON INTENT TO RETURN
posted at 9/10/2008 12:25 PM EDT
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Posts: 25
First: 8/19/2005 Last: 9/11/2008 |
My understanding is that employers may not require medical recertification more frequently than every 30 days.
However, I believe that employers may request periodic status updates from employees related to their intent to return to work. I think these phone call updates can be as frequent as every 2 weeks during a leave of 30 days or more. Am I correct? Does anyone have contradictory information about this practice? |
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FMLA REQUEST UPDATE ON INTENT TO RETURN
posted at 9/10/2008 6:28 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
"An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. The employer's policy regarding such reports may not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee's leave situation...It may be necessary for an employee to take more leave than originally anticipated. Conversely, an employee may discover after beginning leave that the circumstances have changed and the amount of leave originally anticipated is no longer necessary. An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave. In both of these situations, the employer may require that the employee provide the employer reasonable notice i.e., within two business days) of the changed circumstances where foreseeable. The employer may also obtain information on such changed circumstances through requested status reports." from http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.309.htm
I think one key statement is the employer must take into account each individual's leave situation. From the FMLA blog: "In Pande v. Chevron, Corp., No. C 04-5107 CW, 2007 U.S. Dist. LEXIS 3247 (N.D.Cal. Jan. 17, 2007), ...The decision is noteworthy in that the FMLA does not define with what regularity an employer may require an employee to report "periodically." It does, however, require that an employer's policy: [M]ay not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee's leave situation. 29 CFR 825.309(a); 5 CFR 630.1208(j). Here, it is unclear how the Court approved of Chevron's blanket policy mandating such reports every 30 days. Chevron's policy, which does not take into account the circumstances related to the individual employee's leave situation, does not appear to fit within the periodic status report requirements of the FMLA. To remain within the requirements of the FMLA, employers would be well advised not to have a blanket policy mandating periodic status reports at specified intervals (e.g., every 30 days) regardless of the facts of any given case. Periodic report policies must take into account the facts of each case. It may be that in most cases requiring a report every 30 days is permissible. You want to be in the position, however, to say that every request for a periodic status report was evaluated on its merits. " http://federalfmla.typepad.com/fmla_blog/periodic_status_reports/ |
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FMLA REQUEST UPDATE ON INTENT TO RETURN
posted at 9/11/2008 5:41 AM EDT
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Posts: 25
First: 8/19/2005 Last: 9/11/2008 |
Thank you rrupert, you have clarified the issue for me. I have been referencing a Thompson FMLA manual that states "requests for updates in status may not be made more frequesntly than every 30 days". I can see now where the confusion originated.
I have, actually, been looking at each case individually in order to establish the frequency of updates (which for me means phone calls to a supervisor), so I feel more comfortable now. Another question about practice - if an employee's physician certifies a need for leave of less than 30 days, I have been adding a note to the Employer Response letter that recertification will be required if the need for leave extends beyond the original date stated by the physician. I have never thought twice about that practice. I understand that I cannot request an additional medical certification form during a period already certified by a physician (unless there is reason to doubt the original certification). But i want to be sure I am correct in requesting a additional certification form once the original certification "expires" even if the first period of incapacity was less than 30 days. I really think that I may just be having one of those "FMLA Moments" when I begin to doubt everything I do. |
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FMLA REQUEST UPDATE ON INTENT TO RETURN
posted at 9/18/2008 1:01 PM EDT
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Posts: 5
First: 9/17/2008 Last: 9/19/2008 |
If the original certification specifies a short period of incapacity, but the employee then seeks to take FMLA leave significantly beyond the period specified in the certification, why should the employer not be able to request a recertification? The applicable regulation, 29 CFR s 825.308, allows for a request for recertification under different circumstances depending on the type of condition (pregnancy, chronic, etc.) and type of leave (intermittent vs. non-intermittent), but generally allows for a request for recertification sooner than 30 days following a prior certification where the circumstances described by the prior certification have changed significantly (e.g. the duration of the illness or the duration or frequency of the absences). As you state, the regulations also allow for a request for recertification within the 30 day period if the employer has information casting doubt on the validity of a certification.
§ 825.308 Under what circumstances may an employer request subsequent recertifications of medical conditions? (a) For pregnancy, chronic, or permanent/long-term conditions under continuing supervision of a health care provider (as defined in § 825.114(a)(2)(ii), (iii) or (iv)), an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee, unless: (1) Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of absences, the severity of the condition, complications); or (2) The employer receives information that casts doubt upon the employee's stated reason for the absence. (b)(1) If the minimum duration of the period of incapacity specified on a certification furnished by the health care provider is more than 30 days, the employer may not request recertification until that minimum duration has passed unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section is met. (2) For FMLA leave taken intermittently or on a reduced leave schedule basis, the employer may not request recertification in less than the minimum period specified on the certification as necessary for such leave (including treatment) unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section is met. (c) For circumstances not covered by paragraphs (a) or (b) of this section, an employer may request recertification at any reasonable interval, but not more often than every 30 days, unless: (1) The employee requests an extension of leave; (2) Circumstances described by the previous certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications); or (3) The employer receives information that casts doubt upon the continuing validity of the certification. (d) The employee must provide the requested recertification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts. (e) Any recertification requested by the employer shall be at the employee's expense unless the employer provides otherwise. No second or third opinion on recertification may be required. Keep on the lookout for proposed rules, 73 FR 7876-01, clarifying 29 CFR s 825. J. Cross Creason, Esq. |
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