Friday, 15 February 2013 08:13
By Patricia Kryder
When an employee is absent from the office for medical conditions and on FMLA leave, it may not be an unreasonable request for an employer to require recertification of the employee’s serious health condition if the circumstances described by the previous certification have significantly changed. For the employee to receive more time off than requested in a prior certification, the employer may require updated information from the employee’s health care provider when the employee wants to change their work restrictions to accommodate a new physical limitation.
Recertification is reasonable when circumstances change
The employee’s physician had originally estimated the employee would need to be off work one day per week every three months. When the employee’s back pain increased, he wound up taking off six days rather than the estimated two days. From the employer’s perspective, the need for this additional leave constituted a significant change in circumstances. Therefore, the employer requested that the employee recertify his need for FMLA leave.
The employee claimed his FMLA rights were violated by the employer’s demand for recertification, and that the employer’s request constituted “certification harassment”. Under the FMLA, employers may require employees to provide a health care provider’s certification that the employee has a serious health condition and an explanation for the leave requested. Employers may request recertification on a “reasonable basis”, which usually means somewhere between thirty days and six months.
The Sixth Circuit agreed with the position of the employer. It held that if an employee desires more time off than described in the prior certification, the employer may require updated information from the employee’s health care provider. Here, the employee sought a change in his working conditions to accommodate a new physical limitation, which was to limit any repetitive bending or twisting at the waist. In contrast to the Americans with Disabilities Act, the FMLA does not appear to have a reasonable accommodations requirement.
Although the FMLA does not use the word “retaliation,” the FMLA covers retaliation-like claims. It is unlawful for any employer to interfere with, restrain, or deny the exercise of or attempt to exercise, any FMLA right. It is unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by FMLA.
The court ruled that under either of the provisions, the employee would bear the burden of establishing that he engaged in protected activity, that he suffered an adverse employment action, and that a casual connection exists between the protected activity and the adverse action. In this case, the employee’s attendance was an issue before his disability, and unrelated to the employee’s need to be recertified for his change in disability circumstances.
Read the case here.