An employer asked an employee for a doctor’s note with every intermittent FMLA absence. Here’s how it turned out…


All you Family Medical Leave Act savants know about the 30-day rule, right?

Once an employer initially certifies an employee for FMLA leave, it cannot seek recertification more often than once every 30 days unless one of these exceptions applies.

Hold that thought as I tell you about the facts from this Fifth Circuit decision I read last night.

A professor accumulated over forty absences, which included canceled classes and office hours, during the first few months of a Fall semester. Although she was diagnosed with IBS, the FMLA did not protect these absences because the professor’s previous intermittent FMLA leave from the year earlier had expired.

In response to these absences, HR spoke with the professor and informed her that, due to her excessive absenteeism, the University would require her to produce doctor’s notes for each sick day under its sick leave policy. The University’s sick leave policy allows supervisors to require medical documentation for each absence to grant paid sick leave.

The following month, the professor applied for and received intermittent FMLA leave prospectively. However, the University continued requiring her to submit a doctor’s note every time she took leave.

What do you think?

I remember a decision from 2014 in which the court granted the plaintiff summary judgment on his FMLA interference claim because the company’s policy of requesting a medical note for each intermittent FMLA absence violated the 30-day rule.

But did the University violate the FMLA’s recertification rules, too? Apparently not, ruled the Fifth Circuit:

The University did not require doctor’s notes for [the plaintiff’s] FMLA leave. It required such notes for the University’s separate, paid sick leave policy…The University afforded its employees paid sick leave, which it allowed to run concurrently with unpaid FMLA leave. The University followed this policy during [the plaintiff’s] first FMLA leave period, which is why [she] continued to be paid during that period without interruption. But University policy also allowed supervisors to require doctor’s notes for each absence to receive paid sick leave when there was excessive absenteeism. During [the plaintiff’s] second FMLA leave period, the University freely admits that it continued requiring [her] to submit documentation for each absence to allow her to continue receiving paid sick leave pursuant to the University’s sick leave policy.

The gist is that the University didn’t just roll out this policy to deter employees, like the plaintiff, from taking FMLA leave. Instead, it was the University’s well-established way of determining abuse of its paid sick leave policy. Indeed, the FMLA allows employers to require their employees “to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”

Case dismissed.

But this is one of those decisions where your mileage may vary depending on facts and circumstances. So, consult outside employment counsel before doing anything that could violate the 30-day rule.

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