The following is an excerpt from a recent opinion letter of the Department of Labor concerning new medical certifications in a new 12 month period under the FMLA:

This is in response to your request for clarification regarding the application of the medical certification provisions of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq.  You state you understand that an employee who qualifies for FMLA leave for his or her own serious health condition may be asked to provide a new medical certification, not just a recertification, for his or her first FMLA-absence in a new leave year.  You request confirmation that a second and third opinion can be sought on this new certification, even though the employee's serious health condition was previously certified, and FMLA leave approved, in previous years.  We are aware that your employer is covered under Title I of the FMLA, and we assume for the purposes of this letter that your inquiry relates to eligible employees who have requested and taken leave in more than one FMLA 12-month leave year for the same qualifying serious health condition. 

Medical Certification in a New 12-Month Leave Period
 
29 U.S.C. § 2612(a)(1)(C) and (D) of the FMLA entitle an eligible employee to 12 workweeks of leave for a serious health condition during the 12-month period selected by the employer [29 C.F.R. 825.200(b)] – subject to the medical certification requirements in 29 U.S.C. § 2613 of the Act.  Medical certification in the new 12-month leave year is similar to the issue of retesting of the 1,250 hours-of-service employee eligibility criterion addressed in the FMLA-112 opinion letter dated September 11, 2000, copy enclosed.  In that letter, we opined that an employee's eligibility, once satisfied for intermittent leave for a particular condition, would last through the entire current 12-month period FMLA leave year designated by the employer for FMLA purposes.

However, if the employee used leave in a new FMLA leave year, the employer could reassess the employee's eligibility for FMLA leave at that time.  Our analysis was consistent with Barron v. Runyon, 11 F. Supp. 2d 676 (E.D. Va. 1998), where the court concluded that FMLA leave "cannot be taken 'forever' on the basis of one leave request.  Instead the statute grants an employee twelve weeks of leave per twelve-month period, not indefinitely."  11 F. Supp. 2d at 683.
 
Given the statutory focus on the leave year, our interpretation regarding new medical certifications is consistent with our interpretation on retesting the 1,250 hours-of-service employee eligibility criterion for the first absence in a new 12-month leave year for employees taking intermittent leave for the same serious health condition. 

It is our opinion that an employer may reinitiate the medical certification process with the first absence in a new 12-month leave year.  A second and third medical opinion, as appropriate, could then be requested in any case in which the employer has reason to doubt the validity of the new medical certification.  This is the case despite the fact that the employer had requested recertification in the previous 12-month leave year.  Such a conclusion is also consistent with FMLA's purpose of balancing the interests of employees who need leave with the interests of employers in the operation of their businesses.  See 29 U.S.C. § 2601(b).