29 U.S.C. § 2613 — Certification

Page 783 TITLE 29—LABOR § 2613 (i) leave under subsection (a)(3); or (ii) a combination of leave under sub- section (a)(3) and leave described in para- graph (1). (B) Both limitations applicable If the leave taken by the husband and wife includes leave described in paragraph (1), the limitation in paragraph (1) shall apply to the leave described in paragraph (1). (Pub. L. 103–3, title I, § 102, Feb. 5, 1993, 107 Stat. 9; Pub. L. 110–181, div. A, title V, § 585(a)(2), (3)(A)–(D), Jan. 28, 2008, 122 Stat. 129, 130; Pub. L. 111–84, div. A, title V, § 565(a)(1)(B), (4), Oct. 28, 2009, 123 Stat. 2309, 2311; Pub. L. 111–119, § 2(b), Dec. 21, 2009, 123 Stat. 3477; Pub. L. 116–92, div. F, title LXXVI, § 7604(a), Dec. 20, 2019, 133 Stat. 2307; Pub. L. 116–127, div. C, § 3102(a), Mar. 18, 2020, 134 Stat. 189.) Editorial Notes REFERENCES IN TEXT The date the Emergency Family and Medical Leave Expansion Act takes effect, referred to in subsec. (a)(1)(F), is the effective date of div. C of Pub. L. 116–127, which is set out as an Effective Date note under section 2620 of this title. CONSTITUTIONALITY For information regarding the constitutionality of certain provisions of this section, see the Table of Laws Held Unconstitutional in Whole or in Part by the Su- preme Court on the Constitution Annotated website, constitution.congress.gov. AMENDMENTS 2020—Subsec. (a)(1)(F). Pub. L. 116–127, § 3102(a)(1), added subpar. (F). Subsec. (c). Pub. L. 116–127, § 3102(a)(2), substituted ‘‘under subsection (a) (other than certain periods of leave under subsection (a)(1)(F))’’ for ‘‘under subsection (a)’’. 2019—Subsec. (a)(1). Pub. L. 116–92, § 7604(a)(1)(A), in- serted ‘‘and subsection (d)(3)’’ after ‘‘section 2613 of this title’’ in introductory provisions. Subsec. (a)(4). Pub. L. 116–92, § 7604(a)(1)(B), sub- stituted ‘‘Subject to subsection (d)(3), during’’ for ‘‘During’’. Subsec. (d)(3), (4). Pub. L. 116–92, § 7604(a)(2), added pars. (3) and (4). 2009—Subsec. (a)(1)(E). Pub. L. 111–84, § 565(a)(1)(B)(i), substituted ‘‘covered active duty’’ for ‘‘active duty’’ in two places and struck out ‘‘in support of a contingency operation’’ before period. Subsec. (a)(5). Pub. L. 111–119 added par. (5). Subsec. (e)(2)(A). Pub. L. 111–84, § 565(a)(4), substituted ‘‘parent, or covered servicemember’’ for ‘‘or parent’’. Subsec. (e)(3). Pub. L. 111–84, § 565(a)(1)(B)(ii), sub- stituted ‘‘covered active duty’’ for ‘‘active duty’’ in heading and in two places in text and struck out ‘‘in support of a contingency operation’’ before ‘‘, the em- ployee shall provide’’. 2008—Subsec. (a)(1)(E). Pub. L. 110–181, § 585(a)(2)(A), added subpar. (E). Subsec. (a)(3), (4). Pub. L. 110–181, § 585(a)(2)(B), added pars. (3) and (4). Subsec. (b)(1). Pub. L. 110–181, § 585(a)(3)(A)(i), (ii), in second sentence, substituted ‘‘subsection (b)(5) or (f) (as appropriate) of section 2613’’ for ‘‘section 2613(b)(5)’’ and inserted ‘‘or under subsection (a)(3)’’ after ‘‘subsection (a)(1)’’ and, after second sentence, inserted ‘‘Subject to subsection (e)(3) and section 2613(f) of this title, leave under subsection (a)(1)(E) may be taken intermittently or on a reduced leave schedule.’’ Subsec. (b)(2). Pub. L. 110–181, § 585(a)(3)(A)(iii), in- serted ‘‘or under subsection (a)(3)’’ after ‘‘subsection (a)(1)’’. Subsec. (d)(1). Pub. L. 110–181, § 585(a)(3)(B)(i), inserted ‘‘(or 26 workweeks in the case of leave provided under subsection (a)(3))’’ after ‘‘fewer than 12 workweeks’’ and ‘‘(or 26 workweeks, as appropriate)’’ after ‘‘attain the 12 workweeks’’. Subsec. (d)(2)(A). Pub. L. 110–181, § 585(a)(3)(B)(ii), sub- stituted ‘‘(C), or (E)’’ for ‘‘or (C)’’. Subsec. (d)(2)(B). Pub. L. 110–181, § 585(a)(3)(B)(iii), in- serted at end ‘‘An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, fam- ily leave, or medical or sick leave of the employee for leave provided under subsection (a)(3) for any part of the 26-week period of such leave under such subsection, except that nothing in this subchapter requires an em- ployer to provide paid sick leave or paid medical leave in any situation in which the employer would not nor- mally provide any such paid leave.’’ Subsec. (e)(2). Pub. L. 110–181, § 585(a)(3)(C)(i), inserted ‘‘or under subsection (a)(3)’’ after ‘‘subsection (a)(1)’’ in introductory provisions. Subsec. (e)(3). Pub. L. 110–181, § 585(a)(3)(C)(ii), added par. (3). Subsec. (f). Pub. L. 110–181, § 585(a)(3)(D), designated existing provisions as par. (1) and inserted heading, re- designated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), realigned margins, and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Amendment by Pub. L. 116–127 effective no later than 15 days after Mar. 18, 2020, see section 3106 of div. C of Pub. L. 116–127, set out as an Effective Date note under section 2620 of this title. EFFECTIVE DATE OF 2019 AMENDMENT Amendment by Pub. L. 116–92 not effective with re- spect to any birth or placement occurring before Oct. 1, 2020, see section 7604(c) of Pub. L. 116–92, set out as a note under section 2611 of this title. EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. CLARIFICATION FOR MEMBERS OF THE NATIONAL GUARD AND RESERVES: GAO AND LIBRARY OF CONGRESS EM- PLOYEES Pub. L. 116–92, div. F, title LXXVI, § 7605(c), Dec. 20, 2019, 133 Stat. 2308, provided that: ‘‘For purposes of de- termining the eligibility of an employee of the Govern- ment Accountability Office or Library of Congress who is a member of the National Guard or Reserves to take leave under section 102(a) of the Family and Medical Leave Act of 1993 [29 U.S.C. 2612(a)], any service by such employee on active duty (as defined in section 101(14) of such Act [29 U.S.C. 2611(14)]) shall be counted as time during which such employee has been employed for pur- poses of section 101(2)(A) of such Act [29 U.S.C. 2611(2)(A)].’’ § 2613. Certification (a) In general An employer may require that a request for leave under subparagraph (C) or (D) of paragraph (1) or paragraph (3) of section 2612(a) of this title be supported by a certification issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, or of the next of kin of an individual Page 784 TITLE 29—LABOR § 2614 in the case of leave taken under such paragraph (3), as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employer. (b) Sufficient certification Certification provided under subsection (a) shall be sufficient if it states— (1) the date on which the serious health con- dition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regard- ing the condition; (4)(A) for purposes of leave under section 2612(a)(1)(C) of this title, a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse, or parent; and (B) for purposes of leave under section 2612(a)(1)(D) of this title, a statement that the employee is unable to perform the functions of the position of the employee; (5) in the case of certification for intermit- tent leave, or leave on a reduced leave sched- ule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment; (6) in the case of certification for intermit- tent leave, or leave on a reduced leave sched- ule, under section 2612(a)(1)(D) of this title, a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and (7) in the case of certification for intermit- tent leave, or leave on a reduced leave sched- ule, under section 2612(a)(1)(C) of this title, a statement that the employee’s intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule. (c) Second opinion (1) In general In any case in which the employer has rea- son to doubt the validity of the certification provided under subsection (a) for leave under subparagraph (C) or (D) of section 2612(a)(1) of this title, the employer may require, at the expense of the employer, that the eligible em- ployee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (b) for such leave. (2) Limitation A health care provider designated or ap- proved under paragraph (1) shall not be em- ployed on a regular basis by the employer. (d) Resolution of conflicting opinions (1) In general In any case in which the second opinion de- scribed in subsection (c) differs from the opin- ion in the original certification provided under subsection (a), the employer may require, at the expense of the employer, that the em- ployee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified under subsection (b). (2) Finality The opinion of the third health care provider concerning the information certified under subsection (b) shall be considered to be final and shall be binding on the employer and the employee. (e) Subsequent recertification The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis. (f) Certification related to covered active duty or call to covered active duty An employer may require that a request for leave under section 2612(a)(1)(E) of this title be supported by a certification issued at such time and in such manner as the Secretary may by regulation prescribe. If the Secretary issues a regulation requiring such certification, the em- ployee shall provide, in a timely manner, a copy of such certification to the employer. (Pub. L. 103–3, title I, § 103, Feb. 5, 1993, 107 Stat. 11; Pub. L. 110–181, div. A, title V, § 585(a)(3)(E), Jan. 28, 2008, 122 Stat. 130; Pub. L. 111–84, div. A, title V, § 565(a)(1)(C), Oct. 28, 2009, 123 Stat. 2310.) Editorial Notes AMENDMENTS 2009—Subsec. (f). Pub. L. 111–84 substituted ‘‘covered active duty’’ for ‘‘active duty’’ in two places in head- ing. 2008—Subsec. (a). Pub. L. 110–181, § 585(a)(3)(E)(i), sub- stituted ‘‘paragraph (1) or paragraph (3) of section 2612(a)’’ for ‘‘section 2612(a)(1)’’ and inserted ‘‘or of the next of kin of an individual in the case of leave taken under such paragraph (3),’’ after ‘‘parent of the em- ployee,’’. Subsec. (f). Pub. L. 110–181, § 585(a)(3)(E)(ii), added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. § 2614. Employment and benefits protection (a) Restoration to position (1) In general Except as provided in subsection (b), any eli- gible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave— (A) to be restored by the employer to the position of employment held by the em- ployee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay,