More FAQ for your FMLA wish list
Continuing the theme of frequently asked questions (FAQ) about the federal Family and Medical Leave Act (FMLA) — because there were so many in our recent webcast — here are some more, complete with answers. This time, the focus is on certifications, recertifications, and if leave runs concurrently with workers' compensation (comp) and short-term disability.
Q: What if an employee doesn’t return a requested certification within 15 days?
A: Much will depend on why the employee didn’t return the certification. If extenuating circumstances justified the delay, employers must be flexible, based on the facts of each situation. If no circumstances justify the delay, employers may deny the FMLA protections after the 15-day window is closed and until the employee provides the requested certification.
Q: What if an employee never returns the certification?
A: If the employee never returns the requested certification, the leave is not FMLA leave, and employers may apply their company policies.
Q: How often may employers ask for a recertification for ongoing conditions?
A: For recertifying an ongoing condition during a leave year, here are the rules:
- You may request recertification no more than every 30 days and only in connection with an absence.
- If the certification indicates that the minimum duration of the condition is more than 30 days, you must wait until that minimum duration expires before requesting a recertification.
- In all cases, you may request a recertification every six months in connection with an absence.
You don’t have to wait the 30 days, minimum duration, or six months in limited situations:
- The employee requests an extension of leave;
- 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).
- You receive information that casts doubt about the employee's stated reason for the absence or the continuing validity of the certification.
When a new 12-month leave year begins, after the employee puts you on notice of the need for leave in that new 12-month leave year period, the employer would treat it as a new leave request, including asking for a new/initial certification.
Q: Is there a separate recertification form from the certification form?
A: No. Employers use the same form for certification and recertification.
Q: Can an employee be on workers’ comp and FMLA at the same time?
A: Yes. If the employee’s occupational injury or illness meets the FMLA’s definition of a serious health condition, the two can run concurrently. In that situation, the employee would be entitled to both workers' comp benefits (e.g., income replacement) and FMLA leave (which protects the employee’s job, but is unpaid). The FMLA also mandates the continuation of group health care plan coverage.
Q: Does an employee on FMLA also qualify for short-term disability (STD)?
A: Possibly. Whether an employee qualifies for STD depends on the specifics of the STD plan, particularly the employee eligibility provisions.
Key to remember: While employers may (but aren’t required to) ask employees for certifications and recertifications, they must be aware of the rules behind them. They must also know that FMLA leave can run concurrently with leave under other provisions.
