What Is the FMLA Diligent Good-Faith Efforts Standard?

The FMLA’s diligent good-faith efforts standard is a phrase from the federal regulations and case law that does two very different jobs. On the employee side, it can extend the seven-day window to fix a deficient medical certification when circumstances outside your control keep you from finishing on time. On the employer side, a closely related good-faith showing is the only way to avoid automatic double damages after a court finds an FMLA violation. Same words, different consequences, and both worth understanding before a leave dispute turns into a lawsuit.

Where the Phrase Appears in the Certification Rules

When an employer receives a medical certification that is incomplete or unclear, the regulation requires the employer to give the employee seven calendar days to fix the problem.¹ That window applies “unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts.” Read plainly: if you are genuinely trying to get the missing information from your doctor’s office and something outside your control is blocking you, the seven-day deadline can stretch.

The regulation doesn’t list the exact conduct that counts. The concept, though, is straightforward. You have to show you actively pursued the missing information rather than sitting on the request. Calling the provider’s office, scheduling an appointment, and following up in writing all count as effort. Waiting until day six, making one phone call, and then claiming impracticability does not. The standard rewards genuine engagement, not last-minute scrambling.

What Diligent Effort Looks Like in Practice

Contemporaneous records are what carry an employee through this. A dated note showing you contacted the doctor’s office the same day you got the deficiency notice, a follow-up email a few days later, a scheduled appointment the office couldn’t move up — that timeline is what turns “I tried” into a defensible position. Timing matters as much as effort. Starting on day one and being blocked by a provider’s vacation schedule reads very differently from starting on day five and running out of clock.

What Counts as Incomplete Versus Insufficient

The regulations distinguish between an “incomplete” certification, where required fields are blank, and an “insufficient” one, where the form is filled in but the answers are vague or nonresponsive.¹ Either way the employer’s response is the same: put it in writing, and specify exactly what additional information is needed. A phone call saying “this isn’t good enough” doesn’t cut it. That written notice is what starts the seven-day clock and identifies what your diligent efforts need to fix.

When the Standard Fails and Leave Can Be Denied

If the deficiencies aren’t corrected within the seven days (or a properly extended window), the employer may deny FMLA leave.¹ A certification that never comes back at all is treated differently. That is a failure to provide certification, and the consequences depend on whether the leave was foreseeable.

For foreseeable leave, if an employee doesn’t return a certification within the required timeframe, the employer can deny FMLA coverage for the gap between the deadline and whenever the certification finally arrives.² The regulation gives a concrete example: if an employee has 15 days to provide certification and takes 45 days without a good explanation, the employer can deny protection for the 30-day gap.

For unforeseeable leave, the employer can deny FMLA coverage if certification isn’t returned within 15 calendar days unless extenuating circumstances made it impracticable.² A medical emergency that prevents the employee from gathering paperwork is the kind of circumstance the rule contemplates. If no certification ever arrives, though, the leave simply isn’t FMLA-protected.

The employer also has its own duties in this exchange. Once someone requests time off that might qualify, the employer must send an eligibility notice within five business days and a written rights-and-responsibilities notice explaining what the employee needs to do and what happens if the obligations aren’t met.³ Vague verbal instructions don’t satisfy that requirement. If the employer skipped its side of the process, an employee’s late or imperfect response looks very different in front of a judge.

The Same Phrase in the Damages Rules

The other place “good faith” governs FMLA outcomes is the enforcement statute. When a court finds that an employer violated the FMLA, the default remedy includes liquidated damages on top of actual losses. Those liquidated damages equal the total of lost wages, benefits, and interest combined, effectively doubling what the employer owes.⁴ This isn’t a ceiling. It is the starting point that applies automatically unless the employer proves otherwise.

The only escape requires the employer to satisfy two conditions. First, the violation happened in good faith, meaning an honest belief that the actions taken were lawful. Second, the employer had reasonable grounds for that belief.⁴ Even when both are met, the court still has discretion over whether to reduce damages. Clearing the threshold doesn’t guarantee relief. It just makes relief possible.

Courts typically analyze this as a two-part inquiry. The subjective prong asks whether the employer genuinely believed its conduct was lawful. The objective prong asks whether that belief was reasonable given the circumstances. An employer that ignored its own policies, skipped required notices, or failed to consult anyone before denying leave will struggle on the objective prong no matter how sincerely it believed it was right. An employer that followed its policies, sent every required notice, and consulted counsel before making a decision has strong evidence on both.

The burden of proof sits entirely with the employer once a violation is established. Employees don’t need to prove bad faith to receive double damages; they get them by default.⁴ The employer has to affirmatively demonstrate its good-faith compliance to avoid the penalty. Documentation is what wins this argument, because memories fade and timestamped records don’t.

What Strengthens the Defense

Consistent adherence to internal policies is the single most persuasive piece of evidence. If the handbook requires written notice within five business days and the HR team actually sent that notice within five business days, the paper trail speaks for itself. Training records for managers, standardized response checklists, and documented consultations with employment counsel all reinforce the argument that the organization took its obligations seriously.

One area where employers sometimes overestimate their protection: reliance on Department of Labor opinion letters or guidance. Unlike the Fair Labor Standards Act, the FMLA does not fall under the Portal-to-Portal Act’s safe harbor for good-faith reliance on agency interpretations.⁵ Following DOL guidance is still evidence of reasonableness and supports the good-faith defense, but it doesn’t create the automatic statutory shield that exists under the FLSA. An employer that relies solely on a DOL opinion letter without independently confirming compliance may find the defense thinner than expected.

What Undermines the Defense

Ignoring known legal requirements is the fastest way to lose. If the regulation says to provide written notice of certification deficiencies and the employer only made a phone call, the objective prong fails. If a manager denied leave without consulting HR or checking the employee’s eligibility, the subjective prong is hard to support because the employer didn’t try to determine what the law required. Courts are particularly skeptical when an employer had a compliant policy on paper but didn’t follow it in practice.

What the Good-Faith Defense Does Not Cover

Two limits are worth flagging so no one leans on this defense harder than it will hold. First, it applies to liquidated damages only. The FMLA requires courts to award reasonable attorney’s fees, expert witness fees, and litigation costs to a successful plaintiff.⁴ The statute uses “shall,” not “may.” There is no good-faith exception here. An employer that wins the good-faith argument and avoids liquidated damages can still face a substantial fee award for losing on the underlying violation.

Second, good faith is not a defense to liability itself. It only controls the size of the damages once a violation is found. The FMLA prohibits both interference (blocking, restraining, or denying someone’s exercise of FMLA rights) and retaliation.⁶ Interference can happen without any bad intent at all. Simply failing to send a required eligibility notice on time can qualify. A well-meaning HR department that misses a deadline is still on the hook for the violation. The good-faith showing is what determines whether the bill doubles.

How the Two Uses Connect

The two applications of the standard sit at different ends of the same process. On the front end, diligent good-faith efforts by the employee can keep a certification alive past seven days and preserve leave. On the back end, a good-faith showing by the employer can cut damages in half after something went wrong. Both turn on the same underlying idea: conduct that a reasonable observer would recognize as honest, timely engagement with what the law actually requires. And both are proved the same way, with contemporaneous records that show what someone did, when, and why. The party that can produce that record is the party the standard tends to protect.

1
eCFR. 29 CFR 825.305 – Certification, General Rule
2
eCFR. 29 CFR 825.313 – Failure to Provide Certification
3
eCFR. 29 CFR 825.300 – Employer Notice Requirements
4
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement
5
U.S. Department of Labor. Final Rulings and Opinion Letters
6
Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts