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What the FMLA Regulations Don't Tell Employers: Your Attendance or Sick Time Policies May Buy You a Lawsuit!

Do you require your employees to produce doctor's notes when absent to prevent or limit the accrual of points under your attendance policy? Do you require employees to produce a doctor's note to use paid time off under your sick time policy? A 2010 federal decision has serious ramifications for employers that have attendance or paid sick time policies that require employees to justify their absences with doctor's notes when they are already on intermittent or reduced schedule leave under the Family and Medical Leave Act (FMLA).

In Jackson v. Jernberg Industries, Inc., 2010 WL 60921 (N.D. Ill. 2010), the district judge entered judgment against Jernberg Industries on a former employee's FMLA interference claim, in spite of evidence that the plaintiff deliberately violated his employer's attendance policy and caused his own discharge. Under Jernberg Industries' point-based attendance policy (which mandates discharge when an employee accrues 14 points), the plaintiff racked up 15.5 points by (1) being tardy twice for reasons unrelated to his FMLA-certified wrist condition, (2) refusing to supply doctor's notes to support 13 unscheduled absences purportedly due to his wrist condition, and (3) missing 10 consecutive days of work with no initial explanation and for reasons that ultimately had nothing to do with his wrist condition.

The court held that Jernberg Industries' attendance policy illegally "interfered" with the plaintiff's exercise of FMLA leave by requiring him to produce a doctor's note following each absence when his physician had already provided a single certification supporting the need for "intermittent FMLA leave" for one year. The court reasoned that the doctor's note requirement discouraged the plaintiff and other employees from taking intermittent FMLA leave and that the FMLA's recertification regulations adequately protected the employer from an employee's abuse of intermittent leave.

According to the employer, it was simply enforcing its attendance policy, which had the added benefit of discouraging the plaintiff from abusing intermittent leave. The employer also pointed out that its doctor's note requirement did not actually interfere with the plaintiff's ability to take intermittent leave, as he took off 26 unscheduled days following a lengthy consecutive FMLA leave for wrist surgery. The court rejected the argument that the doctor's note requirement amounted to an improper recertification of each intermittent leave of absence—distinguishing between the purpose of recertification (to establish the continued existence of an FMLA-qualifying health condition) and the reason behind the doctor's note requirement (to verify that a particular absence is FMLA-related). Despite this distinction, the court held that the doctor's note requirement improperly interfered with the plaintiff's FMLA leave because it was too onerous and might require the employee to provide doctor's notes on a weekly or more frequent basis. The court ignored the fact that the plaintiff himself addressed this problem by producing one doctor's note in November stating that all absences through February 2 of the following year should be excused as FMLA-related.

Court Identifies Two Legal Means of Verifying FMLA-Related Time Off

While conceding that the FMLA and its regulations do not address the legality of doctor's note policies, the Jernberg Industries court determined that recertification is the preferred method of verifying that an employee's time off is FMLA-related: "[T]he regulations allow an employer that doubts whether its employee's absence is actually related to his FMLA-certified condition to request recertification."

FMLA regulations do, in fact, allow employers to request recertification if the employee asks for an extension of leave, if circumstances described by the original certification have changed significantly or if the employer receives information that casts doubt on the employee's stated reason for the absence or the continuing validity of the certification.

In addition to recertification, the court cited other cases that held an employer could rely on the employee's own "word" that his or her absence was FMLA-related. These approved methods of "verification" included (1) having the employee call in to report that his absence is FMLA-related, (2) calling the employee at home and (3) having the employee submit a written, personal certification that a particular absence was FMLA-related.

Intermittent FMLA Leave Can Wreak Havoc on Employers

The Jernberg Industries case highlights how intermittent FMLA leave can wreak havoc on a company when its employees fail to report for work and simply attribute their unscheduled absence to their FMLA-certified condition. For starters, the plaintiff's original certification did not identify the specific days on which he would need to be absent for his wrist condition. Thus, the employer had little or no warning as to when the plaintiff would not show up to do his job.

Furthermore, employers are likely to be dismayed by the types of so-called "verification" recommended in this decision. Asking an employee to provide the reason for his or her absence (whether verbally or in writing) is not the same as "verifying" the articulated reason. Likewise, calling an employee's home during an absence is unlikely to prove or disprove that a missed day of work was FMLA-related. Plus, many employees have replaced their landline with one mobile phone. These approaches to so-called verification do little, if anything, to assure that time off is FMLA-related and that intermittent leave is not abused.

The FMLA recertification regulations do give employers a process by which they can theoretically determine whether an employee is abusing intermittent leave. The employee's physician may be asked, as part of recertification, to analyze the employee's pattern of absences to determine if the employee's condition and need for leave support this absence pattern. If the employee appears to be abusing his or her leave, recertification may be requested more frequently than every 30 days. However, a physician's natural inclination to help his or her patients makes this an unlikely method of reliable verification. Likewise, the Jernberg Industries decision ignores the strong likelihood that this process could irretrievably damage the employer-employee relationship.

If the employee's physician concludes that intermittent leave has not been abused as part of the recertification process, the FMLA regulations also allow the employer to request a second or third medical opinion at its own expense, with the third opinion considered binding. However, that approach also seems detrimental to good employer-employee relations.

Lessons Learned: What Can Employers Do?

In the Jernberg Industries case, the employer may have fared better by simply discharging the plaintiff under its no-call/no-show policy, rather than giving him an opportunity to explain a 10-day absence after the fact. An employee should not be allowed to flout established call-in procedures, be a no-call/no-show and then claim he or she was on unscheduled intermittent leave. At present, case law and FMLA regulations allow employers to enforce call-in and no-call/no-show policies against employees on intermittent or reduced schedule leave, provided the policies are consistently enforced against all employees.

What else can employers do to minimize disruptions caused by intermittent or reduced schedule FMLA leave? Unscheduled absences or other facts may suggest that reasonable safety concerns exist regarding an employee's ability to perform his or her job functions. If an employer has a reasonable belief that an employee poses a significant risk of harm to himself/herself or others, it may require the employee to provide a fitness-for-duty certification in order to return to work. If reasonable safety concerns persist, an employer may require the employee to provide fitness-for-duty certifications for subsequent instances of intermittent or reduced schedule leave, but no more than once every 30 days.

As a further safeguard against disruptions caused by intermittent or reduced schedule leave, an employer may require an employee to transfer temporarily to an available, alternative position (for which he or she is qualified) that better accommodates recurring absences or a part-time schedule. The position need not have equivalent duties but must provide the employee with the same salary or hourly wage rate, with no loss of benefits.

As demonstrated by Jernberg Industries and the general complexities of the FMLA regulations, employers would be wise to consult with their labor and employment counsel at regular intervals as this unpredictable area of law continues to develop.

Editor's note: If you need help revising your FMLA policy to incorporate the most recent statutory and regulatory changes or have questions about how to confront FMLA leave issues, please contact your attorney.

© 2017 Much Shelist, P.C.


About this Author

Sheryl Jaffee Halpern, Much Shelist Law firm, Labor Employment Attorney

Sheryl Jaffee Halpern, chair of the firm's Labor & Employment group, helps employers make important decisions about their employees in a way that is designed to minimize risk. counsels clients on a wide range of employment matters, providing clear, direct guidance designed to promote compliance with the law, while remaining cognizant of the practical workplace realities her clients face. She counsels employers on a wide range of employment matters, providing clear and direct guidance that promotes legal compliance, while remaining cognizant of the practical...