Can I require an employee to provide an FMLA/CFRA recertification if her original certification noted her condition was lifelong?

Both the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) regulations address the issue of recertification but differ in the rights that an employer has to obtain a recertification.

If the employee is outside of California, the federal provisions on recertification would apply, and employers can ask for recertification.

California regulations, however, do not have any provision for recertification, so an employee in California with a “lifetime” condition does not need to provide recertification under the CFRA.

Under the FMLA, an employer may require recertification every 30 days, more than 30 days or every six months, depending on the circumstances of the certification. An employer may require recertification no more often than every 30 days in connection with an absence.

However, if the medical certification indicates that the minimum duration is more than 30 days, the employer must wait until the minimum duration expires before requesting recertification for an absence. For example, if the medical certification states that an employee will be unable to work, whether continuously or on an intermittent basis, for 60 days, the employer must wait 60 days before requesting a recertification.

In all cases under the FMLA, an employer may request a medical recertification every 6 months in connection with an absence, even where the certification states a longer period. A certification which indicates a “lifetime” condition exists indicates that the condition will last more than 6 months.

While the federal regulations do permit recertification even with a “lifetime condition,” California does not.

In California, the California Code of Regulations, Title 2, Division 4, Section 11091(b)(2) Serious Health Condition of Employee controls:

“As a condition of granting a leave for the serious health condition of the employee, the employer may require certification of the serious health condition, as defined in section 11087(a)(2). Upon expiration of the time period the health care provider originally estimated that the employee needed for his/her own serious health condition, the employer may require the employee to obtain recertification, but only if additional leave is requested. The employer may not contact a health care provider for any reason other than to authenticate a medical certification.”

In any situation involving legal rights and lifetime conditions, employers should consult with legal counsel.

Read more about Certification for Family and Medical Leave in the HR Library.