Types of certifications and when to use them

Initial certification

When an employee first puts the employer on notice of the need for leave, the employer must give the employee an eligibility/rights and responsibilities notice. Along with this, the employer may include a certification form and require the employee to have it completed and returned.

Second (and third) opinions

If an employer has reason to doubt the validity of an initial certification for leave taken for a medical reason, it may ask for a second opinion. The employer may choose the health care provider, but must pay for it. If the second opinion differs from the initial certification, the employer may ask for a third opinion, which is binding. The employer and employee must agree on the health care provider, and the employer must pay for the third opinion.

Employers may not request second opinions when employees take leave for a military family member.

Recertification

During a leave year, employers may request recertifications, but no more than once every 30 days and only in connection with the employee's absence. If, however, the certification specifies a minimum duration for the condition, the employer must wait until that minimum has elapsed. Some conditions last for years or even a lifetime, which is why employers may ask for a recertification in six months, again in relation to an absence.

Employers 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). or
• The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification.

Employers may not request second opinions for recertifications.

Annual certification

When a medical condition persists for an extended period, employers may require employees to provide a new certification in the new leave year. The employer must wait until the employee provides notice of the need for leave for the first time in the new leave year. Basically, the employer treats it as a new leave request.

Fitness-for-duty certification

When employees take FMLA leave for their own condition, employers may require that they provide a certification before returning to work confirming they are able to return. The DOL doesn’t have a model form for this. Employers must indicate this requirement with the designation notice.

Key to remember: While employers may request certifications, they must be aware when they may do so.