Employer Rights and Responsibilities Regarding FMLA Leave

4/18/2026

The FMLA gives employers real tools, not just obligations. An employer may require medical certification and, within limits, recertification; ask employees to schedule planned treatment to reduce disruption; temporarily transfer an employee on foreseeable intermittent leave; require paid leave to run concurrently; require status reports and a fitness-for-duty certification; and recover health premiums from an employee who does not return. Each right comes with conditions, and most FMLA claims involve an employer that used a legitimate right the wrong way.

This post covers those rights and their limits. The step-by-step administrative process is in key components of FMLA administration.

The Right to Require Medical Certification

For leave based on a serious health condition, the employer may require certification from a health care provider. The employee must be given at least 15 calendar days to return it, and an incomplete or insufficient certification must be identified in writing with a chance to cure.

Where the employer doubts a certification for the employee's own or a family member's serious health condition, it may require a second opinion at its own expense from a provider it does not regularly employ, and a third opinion if the first two conflict, also at its expense, jointly approved and binding. The limit: employer contact with the employee's provider to clarify or authenticate is restricted to HR, a leave administrator or a management official, never the employee's direct supervisor.

The Right to Recertification, and How Often

The original post said recertification is allowed "every six months or sooner." The actual rule is more structured:

Generally, recertification may be requested no more often than every 30 days, and only in connection with an absence.
If the certification states a duration longer than 30 days, the employer generally waits until that period ends.
In all cases, recertification may be requested every six months in connection with an absence.
Recertification may be requested sooner if the employee asks to extend the leave, circumstances have changed significantly (for example, the pattern or length of absences no longer matches the certification), or the employer receives information that casts doubt on the stated reason for an absence.

Second and third opinions are not available for recertification.

The Right to Ask for Scheduling of Planned Treatment

When leave is foreseeable because of planned medical treatment, the employee must make a reasonable effort to schedule it so as not to unduly disrupt operations, subject to the provider's approval. The employer may ask to discuss scheduling. What it may not do is refuse or delay leave because the employee could not move an appointment that the provider would not move.

The Right to Transfer Temporarily

When an employee needs foreseeable intermittent or reduced-schedule leave for planned treatment, the employer may temporarily transfer the employee to an available alternative position that better accommodates recurring absences. The alternative position must carry equivalent pay and benefits; it does not need equivalent duties. The transfer cannot be used to discourage leave or as a penalty, and when the employee no longer needs the reduced schedule, they return to the same or an equivalent job.

The Right to Require Paid Leave to Run Concurrently

An employer may require (and an employee may elect) substitution of accrued paid leave such as vacation, sick leave or PTO for otherwise unpaid FMLA leave, subject to the employer's ordinary leave policy terms. The employer must tell the employee in advance. Paid leave that is substituted counts against the 12-week entitlement.

The Right to Designate Leave Without Being Asked

The employee does not have to mention the FMLA. Once the employer has enough information to know that leave qualifies, it may, and must, designate it, with the designation notice generally due within five business days. An employer cannot let an employee "save" FMLA leave by declining the designation. Tracking the designated time accurately is covered in tips for tracking FMLA intermittent leave.

The Right to Enforce Call-In Procedures

Absent unusual circumstances, an employer may require employees to follow its usual and customary notice and call-in procedures for requesting leave. If an employee fails to comply without unusual circumstances, FMLA-protected leave may be delayed or denied. The policy must be the same one applied to other absences.

The Right to Status Reports and Fitness-for-Duty Certification

An employer may require periodic reports on the employee's status and intent to return, at reasonable intervals. If the employee clearly states that they will not return, the employer's obligations to maintain health benefits and restore the job end.

Where the policy is uniform and the requirement was stated in the designation notice, the employer may also require a fitness-for-duty certification before restoration. That right has its own rules; see fitness-for-duty certification requirements.

The Right to Recover Premiums and to Deny Restoration in Narrow Cases

If an employee does not return from unpaid FMLA leave, the employer may generally recover the premiums it paid to maintain group health coverage, unless the failure to return is due to a serious health condition or other circumstances beyond the employee's control. The benefits side is covered in FMLA job protection and benefits maintenance.

Restoration can be refused only in limited situations, such as the key employee exception or a position that would have been eliminated anyway. See exceptions to FMLA job restoration rights.

The Responsibilities That Come With These Rights

Every right above depends on the employer meeting its own obligations: posting the general notice and including it in the handbook; providing eligibility and rights-and-responsibilities notices within five business days; designating leave on time; maintaining group health coverage; restoring the employee; keeping medical information confidential and separate; keeping records for three years; and not interfering with or retaliating against leave. An employer that skipped a notice often loses the ability to rely on the related right. The reasons leave can legitimately be refused are covered in reasons for not approving FMLA leave.

Frequently Asked Questions

Can the employer contact the employee's doctor directly?

Only to clarify or authenticate a certification, only after giving the employee a chance to cure a deficiency, and only through HR, a leave administrator or a management official other than the direct supervisor.

Can an employer require a second opinion on recertification?

No. Second and third opinions are available only for the initial certification.

Does a temporary transfer have to be to a similar job?

No. It must have equivalent pay and benefits, but the duties can differ.

Can an employer make employees use PTO during FMLA leave?

Yes, it can require substitution of accrued paid leave, subject to its normal leave policy terms and advance notice to the employee.

What if the employee never gives any FMLA paperwork?

If the employer properly required certification and gave the required time and cure opportunity, leave may be denied for the period not supported by a certification.