FMLA issues that plague employers and how to cope with them, Pt. IV: Exceeding the frequency or duration of intermittent FMLA leave

Three recent Wage and Hour Watch blogs discussed several common FMLA issues faced by employers. Those blogs expand on my philosophy of administering FMLA: don’t lose FMLA focus; hold employees accountable; and communicate. 

This blog discusses how to handle an FMLA issue that falls under the ‘hold employees accountable’ heading: employees on FMLA intermittent leave who exceed the number of absences specified on their FMLA medical certification.

During my years enforcing the FMLA, this issue arose again and again. I observed that many employers initially did little or nothing about an employee who exceeded the number of absences specified in the most recent FMLA medical certification. In those instances, the employee often continued to miss more time than certified. Left unchecked, this tells the employee the employer doesn’t really care about the absences and won’t hold the employee accountable. Inevitably, there comes a point when the employer reaches its limit and finally addresses the issue with the employee. By this time, the employee is surprised and sometimes suspicious or resistant to the ‘sudden’ scrutiny. 

Failing to promptly address absences that exceed the number stated in the FMLA medical certification is the antithesis of holding employees accountable. 

Assume that you have approved and designated FMLA leave for an employee who presented a complete and sufficient certification. It states that he needs intermittent FMLA leave and is expected to have 2-3 flare-ups of his serious health condition per month that will last 1 day per episode. In the third month of his FMLA, the employee misses 4 days. What to do? 

The FMLA regulations at 29 CFR § 825.308(c)(2) state that exceeding the certification’s frequency or duration parameters could be a significant change in circumstances, allowing the employer to require recertification. (The rule limiting recertification to no-more-often than 30 days would not apply in this circumstance.) 

In our example, exceeding the certification’s frequency standard by a single day over the period of a month may not be “significant.” With a minor overrun of leave such as this, I usually advise employers to first talk with the employee and ask them if their health circumstances have worsened (i.e., communicate!). Additionally, the employer should advise the employee that the next time this occurs s/he  may have to go through the recertification process. 

If the employee exceeds approved absences again, to a “significant” degree, be sure and follow through as you said you would. Be as accountable as you want the employee to be!

When is time to request recertification based on an apparent change in health circumstances, do not simply give the employee a new FMLA Medical Certification form and expect the employee to accurately tell the doctor the reason for the recertification.  Instead, include a cover memo to the doctor to explain that the employee has been exceeding the frequency and/or duration of intermittent FMLA leave that was certified on the Medical Certification dated “X,” and provide a list of absences to back that up. 

If the new certification comes back calling for additional days off, and the form is complete and sufficient, you generally should accept it and update the employee and his/her supervisor on the new limits. In this scenario, you have not wasted your time: you held the employee accountable. And you sent a message to this employee and others that intermittent FMLA is not a free ride to take time off whenever the mood hits.  

If you have “reason to doubt the validity” of the new certification, you can go down the second opinion route provided in 29 C.F.R. § 825.307(b)-(c). I rarely recommend this because it is expensive, time consuming, and the rules must be followed carefully.  Perhaps that’s a blog post for another day!

This is a good time to remind employers how important it is to carefully review FMLA medical certifications immediately when received to be sure they are complete and sufficient. See my previous blog that covers this topic.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 

- Mike Staebell