Asking employee for doctor’s name didn’t violate the FMLA


The employer had reasonable suspicion of abuse

After working for the company for a few years, Shannon requested and began taking approved, unforeseeable, intermittent FMLA leave for her migraines. She estimated that the recovery time could be up to three days.

As part of the process, Shannon filled out and signed weekly timesheets designating days as FMLA leave. She was never denied any requested leave for her migraines; in fact, she was encouraged to take FMLA leave whenever she needed it.

Over the span of about six months, Shannon would, on a Friday, request leave for the following Monday. Sometimes, she included reasons that would not qualify for FMLA, such as home construction or putting down her cat. Despite this, Shannon would sign her timesheet for the week designating the time off as FMLA leave.

Given this pattern of what looked like Shannon extending weekends, the employer began to question the accuracy and honesty of her FMLA leave designations, particularly because it seemed she could predict on Fridays that she was going to have a migraine over the weekend and would need Monday off. She was reminded that only time off in connection with her condition could be designated as FMLA leave. When asked about her absence regarding her cat, Shannon indicated that the stress of the situation triggered a migraine.

Shannon pressed her luck when she requested additional leave, including June 29th, to extend the long Independence Day weekend. This was particularly suspicious as the employer knew that Shannon traditionally worked at her brother’s fireworks stand during that time.

After the leave, when asked if the time off on June 29th was for a medical appointment related to her condition, and Shannon said it was. She was then asked for the identity and contact information of the doctor she claimed to have had the appointment. After repeated requests and being given a deadline, Shannon did not provide the information by the deadline, and was terminated.

Shannon sued, arguing that the request for the doctor’s identity and contact information went too far; that the FMLA prohibits employers from demanding a doctor’s name and contact information in order to verify the legitimacy of an employee’s FMLA use. Shannon referred to the FMLA recertification process, which employers may use if they question an employee’s continued need for intermittent FMLA leave.

The employer argued it had a good faith belief that Shannon was misusing her FMLA leave, and she failed to meet the deadline for the healthcare provider’s information. It argued that the recertification procedures are irrelevant because it didn’t dispute Shannon’s entitlement to intermittent medical leave but questioned Shannon’s honesty in designating FMLA leave for approved purposes and sought verification of her claimed FMLA use.

The court sided with the employer, indicating that Shannon did not demonstrate that the employer questioned her FMLA leave entitlement. To the contrary, the employer never denied the leave and even encouraged it. The court concluded that the request for the doctor’s name and contact information did not violate the recertification requirements. It was based upon a good faith belief of potential leave abuse, to verify the legitimacy of Shannon’s FMLA designation of June 29th.

Friends, the employer in this case did not ask for a doctor’s note or any additional medical information. It did not ask anything of the doctor. Had the employer obtained the doctor’s information, it might have asked only about the existence of the questionable appointment, and only after having documented evidence of suspicious leave patterns. Two good points to keep in mind.

Dapkus v. Arthur J. Gallagher Service Company, LLC; U.S. District Court of Connecticut, No. 3:19-cv-01583, April 14, 2022

Key to remember:  Employers might be allowed to ask for limited additional information from the employee if they have a good faith belief of potential abuse.

Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.


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