Employer pays for recertification faux pas

On Halloween, The U.S. Department of Labor (DOL) told an employer it had to pay $38,398 in back wages for lost pay and benefits to an employee for violating the employee’s rights under the federal Family and Medical Leave Act (FMLA).

According to the DOL’s Wage and Hour Division, investigators found the employer told the employee to provide a medical recertification earlier than allowed under FMLA regulations.

The employer ignored extenuating circumstances that kept the employee from providing the recertification in a timely manner. This led to the employee’s accrual of absences that exceeded the company policy, which led to the employee’s suspension and subsequent termination.

While employers may require employees to provide recertifications, they may not ask for them willy-nilly and must allow for an employee’s extenuating circumstances (e.g., a doctor is gone on vacation) when meeting deadlines.

When to ask for recertifications

Employers may request recertifications no more than every 30 days in relation to an employee absence. If, however, the certification says that the minimum duration of the condition is more than 30 days, employers must wait until that timeframe expires before requesting a recertification.

Employers don’t have to wait the 30 days or minimum duration in these limited situations:

• The employee requests an extension of leave;
• Circumstances 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); or
• The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification.

As with an initial certification, employees must provide a recertification within 15 calendar days, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.

Key to remember: If an employee is unable to obtain a recertification within 15 days, employers must be flexible, as this employer learned.