On September 14 (has it been that long ago?), the Matrix compliance team presented True FMLA Stories from Recent Court Decisions as a DMEC webinar (Disability Management Employer Coalition). And if you don’t know DMEC, you should – check them out at dmec.org. And here’s good news: the On Demand recording can be found here and is available to you for free even if you are not a DMEC member (yet).

We had so much fun at this webinar responding to your very good questions. Unfortunately, we ran out of time so we decided to answer a few more in this blog and future blogs. Today we will address some of your questions on the topics of certifications and recertifications.

Question: May an employer request a medical certification each time an employee is absent for a condition already approved for intermittent leave?

Answer: No. Once an employer already has a complete and sufficient certification it may not ask for more information, such as requiring a doctor’s note, for each FMLA-related absence.

The FMLA regulations allow an employer to require a request for leave due to the employee’s or a family member’s serious health condition be supported by a certification issued by the health care provider of the employee or the employee's family member. 29 C.F.R. § 825.305(a). No information may be required beyond that specified in the regulations. §825.306(b).

For intermittent leave, that information must include an estimate of the frequency and duration of the employee’s absences. §825.306(a)(7). Intermittent leave for medical treatment must include an estimate of the dates and duration of such treatments and any periods of recovery. §825.306(a)(6).

Once the employee has provided a complete and sufficient certification on which the health care provider has stated the anticipated frequency and duration, the employer cannot ask for additional medical documentation for leave usage that falls within that estimated usage range or close to it. If the employee’s usage is excessive as measured against the estimate, an employer may request recertification as permitted by the regulations. More on that below!

Since it seems all things relate to COVID these days, here is a link to specific guidance from the Department of Labor relating to a similar question and COVID-19: 9. May my employer require me to submit a doctor’s note to use FMLA leave if I am sick and unable to work because of COVID-19? COVID-19 and the Family and Medical Leave Act Questions and Answers.

The court in the case, Oak Harbor Freight Lines v. Antti, 998 F. Supp.2d 968 (D. Ore. 2014), addressed a similar issue. There, the employer, Oak Harbor Freight Lines, became increasingly frustrated as its employees frequently took Fridays and Mondays for intermittent FMLA. (Sound familiar?) In response, Oak Harbor required employees to provide doctor’s notes supporting each absence and how such absences related to their FMLA-qualifying conditions.

Two of these employees refused to provide doctor’s notes even though according to Oak Harbor, 88.99% of one employee’s FMLA time off and 94% of the other employee’s FMLA time off were adjacent to a weekend or holiday. Oak Harbor requested that the court declare that its practice of requiring these notes complied with the FMLA, but the court disagreed. It held requiring the doctor’s note was illegal given the FMLA’s specific and detailed regulations relating to medical certifications and recertifications.

The Court, quoting another case, stated: “[h[ad Congress, or the Department of Labor desired to permit employers to demand such intermittent verification, the statute or regulations would provide as much. Instead, the regulations provide that an employer can verify the absence-condition connection by means of recertification.”

So the lesson here is stick to the regulation regarding certification and recertification. If you already have a complete and sufficient certification, see if you can utilize the recertification process, which we discuss more in response to our next question below.

Q: How many times should an employer give an employee a grace absence approval before asking for recertification?

This question is spot on in recognizing the recertification process as a useful and powerful tool—especially if the employee is exceeding the frequency and duration of the approved leave or has established “suspicious” patterns of usage.

Generally, for most leaves, recertification is permitted no more often than every 30 days or the expected duration of the leave, whichever is longer. Shorter intervals for recertification are permitted if, for example, there is a significant change in the circumstances than what is set forth in the certification or if the employer has reason to doubt the stated reason for the absence.

The FMLA regulations provide that a health care provider’s assessment of frequency and duration for an intermittent leave is an estimate only. That means just one or two “grace absences” – those allowed in excess of the number or duration of absences estimated by the provider – will not likely establish a significant change in circumstances or any reason to doubt.

But if an absence pattern that exceeds the scope of the current certification continues, that may constitute a significant change in circumstances enabling an employer to utilize the recertification process. Similarly, if the call outs are frequently near a weekend or holiday—like the employees in the Oak Harbor case, such a pattern likely casts doubt on the stated reason for the absences, also enabling use of the recertification process. In fact, in Opinion Letter FMLA2004-2-A the DOL has opined that Friday/ Monday absence patterns can constitute “information that casts doubt upon the employee’s stated reason for the absence.” See also 825.308(c)(2)-(3).

Pings for Employers

So where does this leave employers who struggle with combating repeated questionable FMLA absences?

Manage the medical certification process carefully at the outset by seeking clarification and verification and obtaining second and third opinions as needed. This is your chance if you have any reason to doubt the certification’s validity up front.
Once you receive a complete and sufficient certification, carefully track and document any and all absences that exceed the scope of the initial certification.
Utilize the recertification process if you observe a pattern of leave exceeding the frequency and/or duration of the initial certification.
Finally, if you have concerns about the employee’s absences and leave pattern, provide the health care provider with this information during the recertification process to inquire whether the absences are consistent with the employee’s serious health condition. See Fact Sheet #28G for more information

Additional Questions?

We know there were additional questions and have not forgotten. We’ll take on more outstanding questions in a future blog post or two.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.