Viewpoint: What If Employees Are Absent Beyond What Their FMLA Certification Allows?

A week doesn't go by without employers asking whether they can discipline employees for exceeding the number of intermittent absences allowed on their Family and Medical Leave Act (FMLA) medical certification. The fact pattern usually goes like this:

Johnny is an assemblyman at your 200-employee facility. He has a chronic bad back, and it tends to hurt the most on Mondays and Fridays when he often calls off work. The only predictable thing about his otherwise underwhelming performance is that, every August, he provides you—like clockwork—an updated FMLA medical certification supporting leave for his back.

Johnny's certification calls for three flare ups per month for one day per flare up.

This morning, he called 30 minutes before his shift to report that his back hurts and he won't be in today. The call-in procedure requires that employees call at least one hour before their shift, but he claims he was in too much pain to call on time.

This is Johnny's fourth flare up this month.

Because Johnny has incurred a fourth absence for his back this month (when his medical certification calls for only three in a month), what can we do? Can we discipline Johnny for this absence? Can we at least seek recertification?

Let's discuss.

Can we discipline Johnny for exceeding the frequency indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Johnny's absences under the FMLA.

As a general rule, under the relevant FMLA regulations, employers can seek recertification only every 30 days unless "circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications)."

The regulations provide this example: 

"If a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee's absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days."

Has Johnny's frequency changed 'significantly'?

In my opinion, no. And in one of those rare moments, the Department of Labor (DOL) actually would agree with me.

Keep in mind: The employee's doctor owns no crystal ball, so frequency and duration of absences is a product of their best estimate based on his/her medical judgment at that time. Although we'd be willing to beg health care providers to be more specific and accurate on frequency and duration, they often cannot, as the threshold for pain and the timing of a recovery differs for every individual.

If you have been involved in an FMLA investigation by the DOL over the past couple of years, you know that the DOL takes the position that "one" absence over the frequency indicated in the medical certification does not constitute a significant enough change to trigger recertification. Bottom line, the agency argues that the certification is just an estimate, and one absence over frequency does not trigger the recert process.

So, does this mean an employee's absences must be double the number indicated on the certification, as reflected in the migraine example given above? Not necessarily, but almost always it means more than one over the indicated number. In Johnny's case, I would recertify when Johnny reaches five absences in a month, as this is arguably more of a significant departure from the number indicated on his certification.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

Is there a pattern of misuse the employer can go after?

Johnny isn't out of the woods yet. Notably, he often calls off on Mondays and Fridays, claiming his back has flared up.

This is indeed suspicious. If this hokey pattern continues over even a modest period of time (e.g., over a series of weeks or in back-to-back months), we arguably have the right to reach out the employee's physician. Here, we follow the FMLA regulations and ask Johnny's doctor to confirm for us whether this Monday/Friday pattern is consistent with Johnny's serious health condition and his need for leave.

Eighty percent of the time, the doctor simply will rubber stamp Johnny's pattern and confirm that these absences are related to his bad back. But 20 percent of the time you strike gold—the doctor will respond along the lines of: "I said three times/mo. for one day each, and I meant that!" Well, it's never quite that neat, but you know what I mean—the physician will indicate that Johnny's Monday/Friday pattern somehow is not consistent with his need for FMLA leave.

In Johnny's case, though, he knows we're onto him and keeping tabs. And his doctor realizes it, too. Over time, these requests will result in more honest behavior from the employee—and physician.

Can we discipline Johnny after his doctor responds?

In these "20 percent" situations, neither the FMLA regulations nor any court rulings of which I'm aware give the employer guidance. However, we have given the doctor two chances to provide cover the for the employee: The initial certification and, with our letter explaining the pattern, the recertification.

In this second go around, the doctor now has confirmed that he stands by his position that we can expect Johnny to miss work three times per month at one day each because of his bad back. Therefore, it seems to me eminently reasonable—and defensible in an FMLA lawsuit—to discipline the employee for these excess absences until the employee provides a contradictory medical opinion.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue and the DOL takes the position that the doctor's opinion on frequency/duration is just an estimate to which you cannot hold the employee strictly accountable. Ultimately, however, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the the FMLA Insights blog, where a longer version of this article originally appeared. © 2018 Jeff Nowak. All rights reserved. Republished with permission.

Update: In October 2019, the author revisited this topic: Can Employees Be Disciplined When They Exceed the Frequency on Their FMLA Medical Certification? A Court Finally May Have Given Us an Answer.