by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
November 13, 2019
What can an employer do when an employee takes intermittent FMLA leave in excess of the frequency and duration authorized by the health care provider’s 
certification? In a good case for employers, one court has explicitly upheld disciplinary measures taken when an employee exceeded her approved absences, resulting in violations of the employer’s attendance policy. But it was a multi-step process to get there. Here’s the story:
Tori’s FMLA certification. Employee Tori Evans worked as an administrative assistant for Cooperative Response Center, Inc., an alarm monitoring service. After several years of employment (and a pretty dismal attendance record, by the way) she developed reactive arthritis and needed occasional time off for medical treatments and flare-ups. There is no question in the case that her condition was real. Tori requested FMLA leave and returned a certification from her health care provider supporting FMLA leave for up to 2 half days per month for medical appointments, and 2 full days per month for flare-ups. The provider described her symptoms as “GI illness, oral lesions, and joint pains.” CRC approved Tori’s FMLA leave in accordance with the provider’s certification.
Then what happened? Tori began reporting absences in excess of her FMLA certification frequency and duration. CRC’s progressive attendance policy provided for increasing levels of discipline for unexcused absences, culminating in termination for 10 attendance points over a rolling 12-month period. CRC warned Tori of the possible consequences of absences beyond the approved certification. Then CRC followed the FMLA recertification process (29 C.F.R. § 825.308), asking her doctor to verify the appropriate frequency and duration based on her condition. In the section of the new cert form addressing the frequency and duration Tori needed for appointments and flare-ups, the doctor wrote, “Refer to prior FMLA form.” Based on this and other events, CRC assessed 6 points for absences in excess of her FMLA certification; 2 points for requesting FMLA absences for a medical condition not covered by her certification; 1 point for Tori’s failure to follow CRC’s dual absence reporting procedure; and 1.5 points for another absence due to a medical condition not related to her reactive arthritis.
Total: 10.5 attendance points. Result: termination. Next step: lawsuit.
What CRC did right. CRC’s management of Tori’s FMLA leave and her attendance problems was near picture perfect:
- CRC warned Tori of the consequences of excessive absences (presumably in addition to having its policyin writing and available to employees).
- When Tori began to exceed the parameters of her certification, CRC went back to her provider, followingthe recert process, and obtained verification that the original frequency and duration were still correct.
- CRC carefully analyzed Tori’s reported reasons for absence to verify whether they were covered by herFMLA cert. For example, once she reported an absence of 2 days because her “knee gave out,” which wasnot a symptom of her reactive arthritis as stated by her provider in her original certification. Other timesshe reported she had “lost her voice” and had a fever and was aching everywhere. On these last twooccurrences Tori did not relate them to her approved FMLA, in violation of 29 C.F.R. § 825.303(b)(until her lawsuit, that is):
When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.
- CRC enforced its dual absence reporting procedure and assessed an attendance point when Tori reportedan absence to her supervisor for work coverage but not to HR for FMLA purposes. The courts havegenerally accepted that an employer may require an employee to report an FMLA-covered absence to2 sources. (See our prior blog post on this topic here.)
What’s missing? It is important to remember that the FMLA regulations indicate a provider’s assessment of frequency and duration for an intermittent leave is an estimate only. See 29 C.F.R. § 825.306(a)(5)-(8) (e.g., the certificate must contain “an estimate of the frequency and duration of the episodes of incapacity”). The court did not acknowledge the estimate issue in its opinion. One suspects that the result would be the same, as Tori had 6 absences in excess of her certification approval. Nonetheless, employers should not jump to attendance discipline on the basis of just 1 or 2 excess absences.
Remember, too, that this is just one case – and a district court case at that. As such, it is not binding on any other courts outside of the federal district of Minnesota. However, the analysis is sound and provides a good roadmap for handling those excess FMLA absences beyond the estimated frequency and duration.
Pings for employers. As an employer, you can tightly monitor and assess an employee’s specific absences to ensure they are within the scope of an approved FMLA leave and comply with your absence policies:
- Enforce company and FMLA reporting procedures
- Watch the frequency and duration of the employee’s absences
- Seek recertification when an employee’s absences exceed the certification’s frequency and duration
- Apply consequences for unexcused/non-FMLA absences
But remember to:
- Be consistent in applying your policies to FMLA and non-FMLA situations
- Give a little leeway regarding an employee’s absences – the provider’s certification is an estimate only
The case is Evans v. Cooperative Response Center from the federal court for the District of Minnesota.
Thanks to my fellow blogger Jeff Nowak (and his source!) for bringing this case to my attention. You can read his take on the case here.
MATRIX CAN HELP! Are your FMLA procedures up to snuff like CRC’s? Matrix can help you avoid FMLA pitfalls and follow compliant procedures to manage difficult situations. We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us through your Matrix or Reliance Standard account manager or at [email protected].