Reader asks how frequently a medical leave must be documented

DEAR CARRIE: I have a chronic medical condition. So each year my employer allows me to take intermittent time off over a six-month period under the Family and Medical Leave Act. I have received the approval for several years now. My company grants me the time off because my doctor certifies that I need the six-month intermittent leave to deal with my illness. I hand that certification form to my employer, and that is it for six months. Now, the company has changed its FMLA policy and requires a completed certification from my doctor every 30 days explaining why I need to continue on FMLA. This will be in addition to my current six-month certification, which doesn't expire for a few months. My human resources representative called me in recently to remind me of the new policy. I was told that if I didn't comply, my leave would be canceled. She said the company changed the policy because "people take advantage of the FMLA." And our employer wants to weed out abusers.

This seems unfair because everybody now has to suffer to get at a few bad apples. And I think the new requirement falls into the category of a "claim for FMLA interference," which you mentioned in your column. Can this policy be legal? It feels like harassment and discrimination to me because of my chronic medical condition. And it's a costly change because I will have to shell out a co-pay every month to get the recertification.

I work for a large nonunion community hospital and have no one to fight on my behalf. Can you help me?

DEAR OVERDOSE: The local office of the U.S. Labor Department, which enforces the FMLA on Long Island, agrees with you.

"It appears from the information provided that the employer is overstepping its bounds," said Irv Miljoner, district director of the Long Island office. "They can only ask for a medical recertification in this employee's case every six months."

The Code of Federal Regulations, section 825.308(b2), speaks directly to your situation:

"For FMLA leave taken intermittently or on a reduced leave schedule basis, the employer may not request recertification in less than the minimum period specified on the certification."

Since your doctor certified that you needed the FMLA leave intermittently over six months, that is what determines the frequency of the recertification.

As always, rules have exceptions. For example, your employer could legally request a recertification before six months if the company receives information that casts doubt on your reason for an FMLA absence or if the circumstances described in the current certification change significantly.

Short of that, your company is limited to the six-month certification.

"So, the employee cannot be asked to submit a medical note every 30 days," Miljoner said.

The federal FMLA grants eligible employees up to 12 weeks of unpaid absences each calender year to tend to a personal or family medical emergency or to care for a newborn. The leave protects employees' jobs and benefits.

For more information, call the U.S. Labor Department at 516-338-1890 or 212-264-8185. Go to http://1.usa.gov/1xbCa2f for more on medical certification requirements under FMLA.