Require Dr.'s Cert?

LindaS · June 2003

I have an employee who has been approved for intermittent leave for migraines. Today marks her 5th consecutive day of missed work. Our Attendance Policy states that a doctor's release is required for absences in excess of three days. Would I be okay requiring this form even though she has been approved for this leave?

Don D · June 2003

FMLA does not require that you hold your normal policies in abeyance during FMLA. I would go ahead and notify her that a doctor's statement is required. I think it would be due diligence.

On the other hand, if you have someone's leave approved for non-intermittent FMLA, it would not be useful to require from them a doctor's certificate.

POPEYE · June 2003

Since I assume this EE has been approved for FMLA, unfortunately you may not request any additional certification more often than 30 days. Intermittent leave is a definite "SLAM DUNK" for the EE. I had a DOL investigator inform me that if an EE was certified for intermittent leave that the EE was not required to call in for an absence but only inform upon returning that they were out for the FMLA reason.

LindaS · June 2003

Popeye - Although I am confused about requiring a dr.s slip for these absences for my employee, I would have to disagree with you regarding the employee's need to call in to inform the employer of their absence. Last year there was a case (Lewis v. Holsum of Fort Wayne, Inc.) out of the 7th circuit that supported the employer's right to have an employee notify their employer of their absence based on their usual and customary procedural requirements.

Don D · June 2003

Requiring a 'slip' from the clinic is not the same as requiring additional certification or having the recertification updated. I would stick with my normal policy of requiring one if you do in every other case. I also agree that DOL cannot prohibit us from requiring people to follow established rules while on FMLA. Being approved for intermittent leave is not a free ticket to chunk all work rules and employer policies. You cannot require that the individual go through a process of proving to you why they need to be off or in fact, that they DO need to be off, if they are already approved for intermittent; but, we can still require that they give notice when possible, unless some extreme circumstance would preclude that. I hope that the DOL auditor intended to say that you cannot require that the approved employee go through a process of applying for the leave each time it's needed. That's quite different from the normal employer practice of requiring notice.

POPEYE · June 2003

I agree 100% with both of you. We do require a call-in for absence but the statement from the DOL investigator was as quoted. We were discussing another matter when it came up and neither myself or our GM wanted to raise any other questions so we let it slide.

njjel · June 2003

As with the Bible there are many interpretations of the FMLA regs. At least that's how it seems. At an FMLA training session put on for our firm by a labor law attorney from a large firm we were told that those on Intermittent FMLA are free from any other type of notification for a six month period. Does anyone know where that is stated in the regs?

Don D · June 2003

It is wrong, therefore you will not find it in the regs. If you still have your packet of materials from the seminar, I suggest you email or call 'the labor attorney from the large firm' and ask where they got that notion. Intermittent is not the free ticket some assume it to be and it must first be agreeable to the employer to be granted and I'm sure the law intends it to be reasonable and not serve to offer more than one would have without it. If the intermittent leave is granted due to a circumstance that creates emergency needs or time off that precludes notice or something of that nature, it would of course make no sense to try and require notice or anything else that is unreasonable.

njjel · June 2003

I had never heard of the six month period either!

PAhr · June 2003

[font size="1" color="#FF0000"]LAST EDITED ON 06-13-03 AT 11:59AM (CST)[/font][p]The employee must still adhere to all your company policies as far as notification of missing days (call of procedures or notification of missed days for appointments as soon as possible). You can also request recertification every thirty days but no more often than that (and the employee must also have to have missed work at least once in the thirty days prior to recertification). Hard to explain this one but an employee that hasn't missed any days in the said thirty day period (or for however long they may go without missing work) cannot be asked to recertify until they miss a day of work due to FMLA illness. The only thing you may not require is a doctor's note for every absence. The FMLA certification is designed to put you on notice of impending absences and should be considered to be his/her doctor's note. Asking for a doctor's excuse every time can be construed as harassment (believe me, been there, done that and it wasn't pretty). Learned from my mistake.

mmurnahan · June 2003

My understanding is, the employee still has to comply with the company policy --- to notify employer. the way our company covers ourselves is, to send the employe at letter as soon as we are aware of a FMLA need telling them of the rules and the consequences. For intermittent they receive a letter and in bold letters it states that they must notify their supervisor each time their absence is realted to their FMLA diagnosis. They are also informed that the medical cert has to be updated every 6 months - even though the regs does say we could ask for it every 30 days. (that's too much of a headach for me to keep track of). I even give them the date the cert will expire. Then the ball is in their court to update it when time comes. I find that it will really put your mind at ease if you have form letters regarding FMLA, that outlines all the information you will require the employee to do or not do, that way eveyone will know what is expected of them. And also put a copy of your leave policy in the letter for them.

Require Dr.'s Cert?

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