The Dangers Lurking in the Treacherous Waters of FMLA Intermittent Leave Strike Again

Navigating the murky waters of intermittent leave under the federal FMLA can be treacherous for employers, particularly when such leave can be so easily abused. A recent case involving an employee who was nearing termination under the employer’s attendance policy provides one such illustration. The employee submitted a medical certification stating that he suffered from depression. The certification also said the employee would have “episodic flare-ups” that would cause him to be intermittently absent from work – a phrase all employers dread seeing on a FMLA medical certification. The medical certification estimated that the employee would have approximately four episodes of such “flare-ups” every six months, resulting in absences of two to five days each.

The employee experienced many more absences than estimated on the medical certification, including more than four “flare-ups” in the very first month. The employer continued to approve these absences as FMLA-covered for a period of time. However, when the absences continued to occur, the employer faxed a letter to the employee’s doctor asking the doctor to reconfirm that the information in the medical certification was correct. The doctor obliged. Based on the updated information from the doctor, the employer terminated the employee on the grounds that the continuing absences were unexcused because they went beyond the estimate in the medical certification. The employee sued and the employer moved for summary judgment.

The employer lost its summary judgment motion because it did not follow the FMLA’s very technical requirements. Those technical regulations provide that an employer can require an employee to submit a new medical certification, called a recertification, when there is a significant change of circumstances, such as the “duration or frequency” of the employee’s absences. In the recertification, the employer can list the employee’s actual pattern of absences and ask that the health care provider state whether such pattern is necessitated by the employee’s serious health condition. The court concluded that the fax sent by the employer directly to the health care provider did not correctly follow this “recertification” procedure, in part because the employer contacted the employee’s doctor directly, instead of notifying the employee that he needed to provide a new medical certification from his health care provider. The court decided that it was improper for the employer to treat the absences as not covered by FMLA because it did not use the proper “recertification” procedure set forth in the regulations.

This case is a reminder that employers should always ensure that their procedures and practices are in compliance with the very technical regulations governing FMLA requests, particularly when it comes to intermittent leave.