In a recent federal district court decision the employee argued that his employer violated the FMLA by requiring him to recertify his serious health condition every thirty days. Specifically, he argued that because his physician had certified that his back condition was lifelong his employer was precluded by 29 CFR 825.308(b)(1) from requiring that he recertify every thirty days unless the employee requests an extension of leave, circumstances have changed significantly, or the employer receives information that casts doubt on the continuing validity of the certification. The employee argues that none of these circumstances are involved. The Court found that 29 CFR 825.308(b)(1) did not apply. That provision, the Court observed, “does not refer to the minimum duration of the health condition. Instead it pertains to the “period of incapacity.” The Court agreed with the employer that the recertification request was governed by 29 CFR 825.308(a) which permits recertification every 30 days for chronic or permanent/long-term conditions. Parsley v. The City of Columbus, 2006 U.S. Dist. LEXIS 72185 (S.D.Ohio Oct. 3, 2006).
Comment: All federal sector FMLA variants permit federal employers to up-date a medical certification by recertification. All federal sector variants also include a provision prohibiting an employer from requesting recertification more frequently than the minimum period of incapacity specified by the health care provider, with some exceptions. Many employees confuse the “minimum period of incapacity” with the duration of the condition. Remember, a period of incapacity generally means the inability to work, attend school, or perform other regular daily activities due to the serious health condition.