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Ask for recertification of intermittent leave

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in FMLA Guidelines,Human Resources

Employees who need occasional time off for flare-ups of chronic health problems that qualify as serious health conditions under the FMLA may be entitled to intermittent leave. Employers that approve intermittent leave requests can request regular recertifications to determine if the need still exists.

The frequency of those recertifications is set by regulation. An employer can request recertification every 30 days unless the minimum duration of the condition is more than 30 days but less than six months. For a condition that lasts more than six months, an employer is allowed to seek recertification every six months.

Make sure HR staff members in charge of monitoring intermittent leave understand when they can request new certification information.

Recent case: David worked as an X-ray technician. His responsibilities included taking X-rays, engaging with patients and assisting other staff members. David suffers from ulcerative colitis, a serious medical condition that can cause loss of blood, weakness and serious pain.

David was approved for intermittent leave off and on, depending on whether he had worked enough hours during the past year to hit the 1,250-hour minimum FMLA requirement.

He also missed work for other reasons unrelated to FMLA leave and was terminated for poor performance. That’s when he sued, alleging that his FMLA intermittent leave had been treated incorrectly because he had to get fairly frequent recertifications.

But the court reviewed the employer’s FMLA rules and David’s medical submissions. It found the employer had followed the rules. For example, it gave David three months to get a recertification three months into his first FMLA intermittent leave period. That made the next recertification request due six months after the leave started. David’s case was dismissed. (Cruz v. Wyckoff Medical Center, No. 13-CIV-8355, SD NY, 2016)

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