Sheralee S. Hurwitz, January 7, 2014

Under the Family Medical Leave Act, employers may obtain medical certification to confirm an employee’s serious health condition as a basis for FMLA leave. Under the regulations, the timing for obtaining such a certification is within five business days after the employee gives notice of the need for leave, or in the case of unforeseen leave, within five business days after the leave commences. The employer may request certification at some later date if the employer has reason to question the appropriateness of the leave or its duration. The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not feasible under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

There are circumstances, however, where the certification procedures set out in the FMLA regulations don’t work exactly as planned. Perhaps a holiday intervened or something else resulted in a delay in processing FMLA medical certification paperwork. Is an employer entitled to send out a certification request based on an employee’s serious health condition, after the initial “five-day period” has passed?

A recent Sixth Circuit case, Kinds v Ohio Bell Telephone Co., says the employer may request medical certification after that initial five-day period under certain circumstances. This case focuses on the language in the FMLA regulations (specifically, 29 CFR 825.305(b)) providing that the employer may request certification at some later date if the employer then has reason to question the appropriateness of the leave, or its duration. In the Kinds case, the employee challenged the employer’s request for medical certification which came after her FMLA leave request was granted, but also after a short-term disability carrier denied her request for short-term disability benefits. The plaintiff in Kinds argued that in order to seek medical certification after the initial five-day inquiry period, and after FMLA leave designation, the employer had to have a reason to doubt the appropriateness of the leave. In other words, the employer had to believe the employee was engaging in some kind of fraud related to the FMLA leave in order to seek medical certification information after the initial five-day inquiry period.

The regulations, however, are not so limiting. The Court in Kinds stated that there is “nothing in the text of the FMLA statute or regulations indicating that the discovery of employee fraud is the only acceptable reason for an employer to request a medical certification after the five-business-day period following an employee’s notification of leave.” The Court determined that it was inappropriate to adopt a regulatory interpretation “so devoid of any statutory, regulatory, or precedential basis.” Instead, FMLA certification regulations should follow the plain meaning of the regulations. In the Kinds case, that meant that a request for medical certification was proper when the short-term disability carrier denied her disability claim for the period in question, which raised a question about the “appropriateness” of the FMLA leave designation. The regulation also provides that if the duration of the leave is in question (in other words unclear), a later request for medical certification is appropriate as well.

The FMLA is a complicated statute, with various forms to consider and use. Experience is beneficial in making sure that they are appropriately and timely used. If an employer doesn’t have that kind of experience, consultation with an appropriate HR professional, or human resources attorney is the best practice to follow.

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