FMLA Articles

Leave beyond certification may lead to termination

Employee was given a chance to support extra absences Emily had a bit of attendance issue history with her employer. Like many companies, Emily’s had a no-fault attendance policy, assigning points for absences without prior notice. If an employee amassed 10 points within 12 rolling months, they were terminated. FMLA leave, however, did not incur such points. After she had been working for the company for a bunch of years when she began developing symptoms for which she requested, and was given, FMLA leave. The employer had requested a certification, which indicated that Emily needed FMLA leave up to four hours per day, once or twice a month for appointments, and would need one to two full days of leave per month for flare-ups. The leave was approved per the certification. The employee was informed of this, and that any absences above and beyond the FMLA approved frequency would be considered regular absences and be eligible for attendance points per policy. The employee was also instructed to call in as required when FMLA leave was needed. The call-in requirement included notifying her manager and the HR department. As time went on, the employer noticed that, in addition to the FMLA leave, Emily also had 11 unplanned absences that did not appear to be supported by the certification. On six occasions, Emily used more FMLA leave than the certification supported. Therefore, the employer requested a recertification. The doctor indicated that the employer was to “refer to prior FMLA form.” Since the recertification did not support the excessive absences, they were not FMLA-protected, and treated as regular absences. Other issues emerged. Emily failed to follow proper notification for some absences. On one occasion she failed to notify HR, on others, she missed work for reasons seeming unrelated to her FMLA-qualifying condition or she failed to indicate that they were related. Emily’s attendance points added up to 10 or more and she was terminated. She sued, arguing that some of the application of attendance points violated the FMLA. The court sided with the employer in this case, indicating that an employer who enforces call-in procedures by firing an employee on FMLA leave for noncompliance does not violate the FMLA. Emily did fail to contact HR per policy, and she failed to inform her employer that the new symptoms she was experiencing were related to her certified condition. So, employers, yes, you may discipline employees regarding absences that are beyond the certification, but you are first expected to request a recertification, to ensure that the need for leave hasn’t changed. This employer did just that, and after receiving information that Emily did not need to have more leave than the initial certification, had the right to apply discipline to the excessive absences. Having a clear call-in policy and reminding the employee of it can also help. In this case, Emily failed to follow the policy and failed to link other absences with her FMLA-certified condition. These helped Emily lose the argument. Evans v. Cooperative Response Center, Inc., District of Minn., No. 18-302, June 18, 2019. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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