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What Am I Doing Wrong?? Common FMLA Mistakes

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. Up until now, the most common mistakes were addressed in this blog. Now that we have hit the twentieth post in this series, we are going to dig a bit deeper into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Requesting recertification for FMLA qualifying exigency leave or leave to care for a covered servicemember.

FMLA leave for a “qualifying exigency” of a covered family member or to care for the serious injury of a covered servicemember are usually not the most frequent types of FMLA leave taken by eligible employees. When eligible employees do take these types of FMLA leave, employers should be careful not to forget some of the unique differences between these types of FMLA leaves and the more routine leaves for serious health conditions of employees or covered family members.

An employer is entitled to request a certification to support the need for an employee’s FMLA leave request for a qualifying exigency or to care for a covered servicemember. The U.S. Department of Labor developed separate certification forms specifically for these purposes at https://www.dol.gov/whd/forms/WH-384.pdf (qualifying exigency) and https://www.dol.gov/whd/forms/WH-385.pdf (serious injury or illness of a current covered servicemember), or https://www.dol.gov/whd/forms/wh385V.pdf (serious injury or illness of a covered veteran).  The use of these forms is voluntary, but an employer may not seek information outside the scope of the U.S. Department of Labor forms.

Perhaps the most unique aspect of FMLA qualifying exigency and covered servicemember leaves is that employers may not request a recertification relating to such leaves.

There is no insight from case law on this particular issue, so the FMLA regulations are the leading guidance at this time.

The FMLA regulations specifically state that recertification does not apply to leaves taken for a qualifying exigency or to care for a covered servicemember. Therefore, the recertification rules and reasons available for other forms of FMLA leave simply do notapply to qualifying exigency or covered servicemember FMLA leaves.

As a best practice, employers should periodically review their existing FMLA processes and procedures. If an employer is using its own certification forms, they should be checked to make sure they are not requesting information outside the scope of the DOL forms. Further, the leave process should be clear that recertifications are not permitted for FMLA leave for a qualifying exigency or to care for a covered servicemember. Steps should be in place to prevent a recertification request being issued to an employee on FMLA leave due to these reasons.

Jackson Lewis P.C. © 2020


About this Author

Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment...