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Employer’s Recertification Requirement Doesn’t Interfere with Employee’s FMLA Rights

by | Mar 4, 2022 |

The U.S. Court of Appeals for the Eighth Circuit, in Whittington v. Tyson Foods, Inc., has concluded that an employer may require recertification of an employee’s need for leave under the Family and Medical Leave Act (“FMLA”) without violating the law where there is a “significant change in circumstances” warranting the inquiry.

Law.  Under the FMLA, an employer is entitled to require certification from a health care provider of the employee’s need for leave.  If the indicated minimum duration of FMLA leave (including leave on an intermittent basis) is more than 30 days, the employer normally must wait at least 30 days before requiring reauthorization.  There are exceptions to this rule, however, including instances where the circumstances described in the initial certification have “significantly” changed.  Department of Labor (“DOL”) regulations implementing the FMLA  provide specific examples of such changed circumstances:

“For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification…. Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off, then the timing of the absences might constitute a significant change in circumstances sufficient for an employer to request a recertification….”  29 CFR § 825.308.

Facts.  In Whittington, the employee was approved for intermittent FMLA leave following his physician’s certification that he would need four to five days off every couple of months.  The employee took leave consistent with this certification for the first six months.  However, the employee then missed 16 consecutive workdays rather than the expected four to five ways set forth in the original certification, and the employer requested FMLA recertification.  The employee did not provide the employer with the requested recertification.

After being terminated for failing to return from an unapproved leave and failing to communicate with the employer, the employee sued the employer claiming interference with his FMLA rights based on the request for recertification.

Eighth Circuit.  The Eighth Circuit initially recognized as undisputed that an employer may require certification from an employee’s healthcare provider to support an FMLA leave request, and on a reasonable basis, request recertification.  The court noted that under DOL regulations, “if the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting recertification.”  In the employee’s case, the minimum duration was the one year stated by his treating physician in the initial certification.

The Eighth Circuit next explained that there are exceptions to the general rule, one of which is where the circumstances identified in the initial certification have changed significantly.  In the instant case, the court noted that the employee’s 16 consecutive days of leave more than tripled the length of the consecutive leave days originally certified by the employee’s treating physician.  In light of this fact, the court found that the employee’s 16-day leave was a “significant change in circumstances” that warranted the employer’s requirement for recertification.  Therefore, the court concluded that the employer’s request for recertification was reasonable as a matter of law and didn’t interfere with the employee’s FMLA rights.

Accordingly, the Eighth Circuit affirmed the lower court’s dismissal of the employee’s lawsuit.

Employer Takeaway.  In situations where abuse of FMLA leave is suspected, employers should remember that applicable DOL regulations specifically authorize FMLA recertification requests, to ensure that FMLA leave is being properly used.  As demonstrated in the Whittington case, the FMLA will not protect employees who fail to comply with their obligations to provide FMLA recertification when it is reasonably requested by the employer.