labor-law disabilities federal-courts
Can an employer request recertification for a spouses permanent disability?
<p>My wife has a major medical health issue that there is no known cure for. I have been certified through my job for FMLA to take Intermittent Leave as needed for her health condition. Now every year they are requesting recertification.</p>

<ol>
<li>This requires me to take time off work to get</li>
<li>Due to the amount of Vac/Sick time I have it sometimes is LWOP</li>
<li>The Dr. has stated that if he has to fill out the form with the same information every year then he will have to charge because of how time consuming it is</li>
</ol>

<p>Now I'm not a lawyer. I have, however, read through the DOL site on FMLA and I believe that I should be exempt from this requirement due to:</p>

<hr>

<blockquote>
  <p><a href="http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&amp;sid=abbd92cdff37c5d32de741cc5ccc1e81&amp;rgn=div5&amp;view=text&amp;node=29:3.1.1.3.54&amp;idno=29#se29.3.825_1308" rel="nofollow noreferrer">§825.308</a> Recertifications for leave taken because of an
  employee's own serious health condition or the serious health
  condition of a family member.</p>
  
  <p>(a) 30-day rule. An employer may request recertification no more often
  than every 30 days and only in connection with an absence by the
  employee, unless paragraphs (b) or (c) of this section apply.</p>
  
  <p>(b) More than 30 days. <strong>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 a recertification, unless paragraph (c) of this section
  applies.</strong> For example, if the medical certification states that an
  employee will be unable to work, whether continuously or on an
  intermittent basis, for 40 days, the employer must wait 40 days before
  requesting a recertification. In all cases, an employer may request a
  recertification of a medical condition every six months in connection
  with an absence by the employee. Accordingly, even if the medical
  certification indicates that the employee will need intermittent or
  reduced schedule leave for a period in excess of six months (e.g., for
  a lifetime condition), the employer would be permitted to request
  recertification every six months in connection with an absence.</p>
  
  <p>(c) Less than 30 days. <strong>An employer may request recertification in
  less than 30 days if:</strong></p>
  
  <p>(1) <strong>The employee requests an extension of leave;</strong></p>
  
  <p>(2) <strong>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).</strong> 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 in less than 30 days. 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
  also might constitute a significant change in circumstances sufficient
  for an employer to request a recertification more frequently than
  every 30 days; or</p>
  
  <p>(3) <strong>The employer receives information that casts doubt upon the
  employee's stated reason for the absence or the continuing validity of
  the certification.</strong> For example, if an employee is on FMLA leave for
  four weeks due to the employee's knee surgery, including recuperation,
  and the employee plays in company softball league games during the
  employee's third week of FMLA leave, such information might be
  sufficient to cast doubt upon the continuing validity of the
  certification allowing the employer to request a recertification in
  less than 30 days.</p>
  
  <p>(d) Timing. 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.</p>
  
  <p>(e) Content. The employer may ask for the same information when
  obtaining recertification as that permitted for the original
  certification as set forth in §825.306. The employee has the same
  obligations to participate and cooperate (including providing a
  complete and sufficient certification or adequate authorization to the
  health care provider) in the recertification process as in the initial
  certification process. See §825.305(d). As part of the information
  allowed to be obtained on recertification for leave taken because of a
  serious health condition, the employer may provide the health care
  provider with a record of the employee's absence pattern and ask the
  health care provider if the serious health condition and need for
  leave is consistent with such a pattern.</p>
  
  <p>(f) 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.</p>
</blockquote>

<hr>

<p>The medical certification states that the condition is a lifelong illness. So technically, I could claim that they can't request certification until my spouse is deceased?</p>

<p>I haven't requested an extension of leave.</p>

<p>The circumstances have not changed at all.</p>

<p>My employer doesn't have reason to doubt me.</p>

<p>Basically I was told that, they require recertification for all FMLA's that are more than a year, and this was important to provide the same requirements for all employees. However, my situation isn't a broken arm, surgery, or a pregnancy. My situation is a major medical health issue that will persist throughout my wife's lifetime and require me to miss an hour here or there, a day here or there, in order to care for her.</p>

<p>It doesn't seem like much? Roughly $50 to get recertified. But this requires me to take time off of work, find a sitter, ask my wife to go to the Doctors, burn up Sick/Vaca time that I might otherwise need for ACTUAL FMLA use, or worse... requires me to use Leave Without Pay in order to get the documentation.</p>

<p>I am aware that I can file a complaint with the DOL but it would be nice to know whether I have missed something important here before going that route and wasting tax payers money.</p>

<p>Frustrated because I just want to work. Not play arbitrary games for HR Red Tape processes.</p>

<p>From the quoted passage:</p>

<p>"In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. Accordingly, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition), the employer would be permitted to request recertification every six months in connection with an absence."</p>

<p>So, yes, they can do that.</p>

<p>I would suggest talking to your employer, though.</p>
