Navigating Suspected FMLA Misuse With Compliant Solutions

In absence management, complex situations are not uncommon. One recurring question we hear from our client partners is: “What can we do to address suspected FMLA misuse?” As is often the case, the answer depends on the specific circumstances. When concerns arise, there are several compliant options employers can use to review the situation and confirm whether the leave continues to be supported by the medical certification.

Recertification

Recertification may be used to confirm whether an employee with a serious health condition, or their family member, continues to qualify for FMLA leave. As a general rule, recertification may be requested no more often than every 30 days; however, if the medical certification specifies that the condition will last longer than 30 days, recertification generally must wait until that minimum duration ends unless there is a permissible reason to request it sooner.

For chronic or permanent conditions, recertification is typically requested every six months to one year, depending on the medical details included in the certification.

Earlier requests may be appropriate:

• When the employee seeks additional leave
• If the frequency or pattern of absences changes significantly
• When new information casts doubt on the stated reason for the absence or the validity of the certification

For example, an employee may be certified for intermittent leave with an estimated frequency and duration of one day per week for flare-ups.

If the employee is regularly out for two days in a row or has multiple occurrences within the same workweek. While this may be reasonable in certain circumstances, it may also be appropriate to recertify the leave to capture the need for a higher frequency and duration due to a worsening condition.

Pattern of Absences Recertification

When a pattern of absences is identified in intermittent leave, a recertification request may include a leave usage history.

This provides the health care provider an opportunity to confirm whether or not the absences are consistent with the certification. For example, if an employee is certified for an intermittent leave with a frequency and duration of two days per week, and those absences routinely take place on Mondays and Fridays, a pattern of absences recertification may be appropriate. The general recertification principles described also apply to those where a pattern of absences review has been requested.

Additional Opinion Requests

When there is reason to question the validity of a complete and sufficient certification, a second opinion may be appropriate and is obtained at the employer’s expense. If the first and second opinions conflict, a third opinion may also be requested at the employer’s expense.

The third health care provider must be jointly approved by the employer and employee, and that opinion is final and binding. During this process, the employee remains provisionally entitled to FMLA leave and continuation of group health benefits.

If the final certifications do not support FMLA eligibility, the leave is not designated as FMLA and may instead be administered under an employer’s applicable paid or unpaid leave policies. Second and third opinions may be pursued in relation to an employee’s own serious health condition, or for their qualified family member, at the time of their initial leave request or in conjunction with their first absence in a new leave year.

Key Takeaways

• Recertification should not be requested for every absence and must follow the 30-day minimum duration, or six-months or one-year timing rules. Recertification may be requested sooner if the employee requests additional leave, the absence pattern changes significantly or new information raises a question about the need for leave.
• A pattern of absences recertification may include a leave usage history, so the provider can confirm whether the absences are consistent with the certification.
• A second opinion may be requested when there is a valid reason to question a certification, and if opinions differ, a third opinion may be required and will be final.

Contact your account manager if you have questions about your program or find a representative near you for questions or more information about leave resources.