“March Madness” is ***checks notes*** not a serious health condition.


The NCAA Men’s Basketball Tournament began yesterday. Last night, I read that the average worker will spend seven hours watching it, with 26 percent of Americans saying they’re prepared to skip work altogether to watch. Cynically, I imagine some of these workers are currently on intermittent FMLA.

Two things can be true: (1) An employee with a serious health condition can take an intermittent leave day, and (2) watch March Madness while taking approved leave under the Family and Medical Leave Act.

However, it is also possible that an employee approved for a day or two of leave each month for migraine headaches starts taking many more days off over the next few weeks to watch basketball. Or, perhaps, an employee who says they are taking an intermittent FMLA day does something to cast doubt on that, like turning in a Hooter’s doctor’s note.

The FMLA permits an employer to request medical recertification for leave taken because of an employee’s own serious health condition or the serious health condition of a family member. Here’s a primer on how to do that:

30-day Rule
The general rule is that an employer may not ask an employee on FMLA to recertify their need for leave more than once every 30 days and only in connection with the employee’s absence.

More than 30 Days
Suppose the employee’s health care provider has certified that the serious health condition will last more than 30 days. In that case, an employer must wait out that minimum duration (but not more than six months) before requesting a recertification in connection with the employee’s absence.

Less than 30 Days
There are three instances when an employer may request recertification in less than 30 days.

  1. The employee seeks to extend their leave;
  2. Circumstances described by the previous certification have changed significantly (see, e.g., Migraine Mike and Molly); or
  3. The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification (e.g., a wing sauce-stained doctor’s note signed by nurse Tiffany).

The Procedure
Employees get at least 15 days to recertify and possibly longer despite the employee’s diligent, good-faith ***cough*** efforts.

The employer may ask for the same information for recertification as the original certification. But if, for example, the employer notices a suspicious absence pattern, it can provide that information to the health care provider to see if the employee needs that much leave.

Generally, The employee pays for recertification. Unlike with an original FMLA certification, an employer may not request a second or third opinion.

Now, here’s the big question: how many of you have requested that an employee recertify FMLA-related absences around the NCAA tournament?

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