If you require certification, you must request it in writing and allow at least 15 calendar days for the employee to comply, or longer in the case of extenuating circumstances.
With the exception of military caregiver leave certified by a military-affiliated health care provider, you can also require employees to get second and third medical opinions at your expense. The second or third opinion health care provider can't be one you regularly contract with or otherwise use. Third opinions are final and binding and must be from a provider that you and the employee jointly agree on.
The Department of Labor provides the following forms employers may require from employees as certification to support the need for leave:
- Certification of Health Care Provider for Employee's Serious Health Condition;
- Certification of Health Care Provider for Family Member's Serious Health Condition;
- Certification of Qualifying Exigency for Military Family Leave;
- Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave; and
- Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.
The FMLA regulations also outline specific criteria for when and how recertification may be requested.
Tips for intermittent leaves
To help you better manage intermittent FMLA leave, keep the following tips in mind:
- Always require medical certification. The certification form should state if intermittent or reduced leave is required.
- Have employees consult you before scheduling treatment. This will help you work out a schedule that meets both your needs, provided the schedule is approved by the patient's health care provider.
- Discuss a reduced schedule. Even if the employee doesn't request it, a reduced schedule can be valuable. However, employees have the right to refuse this option.
- Track time carefully and consistently. Deduct time in increments no greater than the shortest period of time used to account for the use of other forms of leave, provided it is no greater than one hour. Keep in mind that an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. Doing so won't impact an employee’s exempt status under Fair Labor Standards Act (FLSA).
- Carefully enforce your attendance policies.
- If you allow intermittent leave to care for a healthy child after birth, adoption or foster care placement, establish, communicate and consistently enforce parameters for how and when intermittent leave may be taken (e.g., minimum increments, approved in advance, etc.).
Paid vs. unpaid leave
FMLA leaves are unpaid unless an eligible employee requests or an employer requires substitution of certain kinds of paid leave.
Permissible paid leave substitutions include:
- paid vacation or personal leave (including "paid time off" plans) during any FMLA-qualifying leave;
- paid family leave during leaves relating to birth, adoption/foster care or care for a seriously ill family member; and
- paid medical/sick leave during leaves to care for a family member or for the employee's own serious health condition.
You aren't required to provide paid sick/medical or family leaves when you wouldn't ordinarily do so under your company's policy. You also can’t count paid leaves that weren’t for an FMLA purpose against an employee's FMLA entitlement.