OK, we all know that employers can ask employees for fresh certification if there’s a change in the medical condition that’s behind the worker’s request for intermittent FMLA leave. But can an employer ask for recertification so many times that it constitutes harassment?
That was the question in a recent federal court case in Michigan.
It involved Leddrew Smith, an engineering assistant for the City of Niles’ utility department. A car accident left Smith with a back injury that partially disabled him.
Smith’s physician told the city that Smith would have “1-2 day intermittent episodes of incapacity,” and, even while at work, he would be unable to bend, lift more than thirty pounds or walk more than thirty minutes.
The municipality kept Smith in his position as an engineering assistant and reassigned some of Smith’s more-physical work to other employees.
Later, Smith and another employee lost their jobs when the utilities department reorganized.

‘Certification harassment’?

Smith sued, saying his employer was guilty of interfering with his FMLA rights.
Chief among his allegations: Smith said the city committed “certification harassment” by demanding he provide six separate medical recertifications over a period of several years.
Although that number of recertification requests seems excessive on its face,  the court found the city was well within its rights to make them.
As the decision explained, an employer may demand “a recertification of a medical condition every six months in connection with an absence by the employee.”
And an employer may demand recertification within a shorter time, even as few as thirty days, if “[c]ircumstances described by the previous certification have changed significantly,” including an “increased duration of absence.”
The court pointed to a couple of instances that supported the city’s decision to ask for new certification — once, when  Smith took six days of leave instead of the two days specified in his earlier certification, and another time when he sought a change in his working conditions to accommodate a new physical limitation — “no repetitive bending or twisting at the waist.”
The court summed up the case in one paragraph: “[Smith] is right about one thing: An unreasonable demand for recertification may interfere with FMLA rights. He is wrong about another: The city’s requests all fit comfortably within the regulatory boundaries.”
Pretty clear takeaway there: Stick to the rules covering when and where you can ask for FMLA recertification, and you’re likely covered legally.
The case is Smith v. City of Niles.