Q: I know that I have to allow employees at least 15 days to return a medical certification, but when does the 15-day clock start running?
A: Start on the day the employee receives the request for certification.
The FMLA rules state that if an employer asks for a medical certification or recertification of a serious health condition, the employee must provide the certification
“within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification."
The rule is not clear, however, about whether the "employer's request" occurs on the date a written request for certification is sent to the employee, or the date it is received by the employee.
There is, however, a later provision in the rules that seems to clarify this question. The section addressing "failure to provide a certification" for "unforseeable leave" (29 C.F.R. § 825.313(b)) states, in part:
“In the case of unforeseeable leave, an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances."
While this language specifically addresses only certifications for unforeseeable leave, taken in context it seems fair to assume that the DOL may read the 15-day requirement in a similar manner for both foreseeable leave and requests for recertification. Thus, the conservative approach is to calculate the 15-day deadline from the date the employee receives the request, not the date it is sent.
In light of this, we recommend the following approach whenever requesting a medical certification or recertification:
- Make the request in writing, and be sure to keep a record of when and how it is sent or given to the employee. (For initial certifications, include the request along with the eligibility notice.)
- Whatever method is used, get confirmation of delivery and keep this along with a file copy of the request.
- Count the 15 days from the date of delivery to the employee.
- In the written request, state that the certification is due within 15 days from receipt of the request. You can provide a specific date by stating "assuming that this request is received on [date], the certification will be due on [date]," or language to that effect.
- If the employee fails to return the certification within the allotted time, strongly consider a follow-up request before denying leave. In the follow-up, inform the employee that he or she must explain why the certification was not provided within the initial 15-day period.