Fire Department Sick Leave Policies and the FMLA: Confusing and Complicated Rules Can Get You Sued

By John K. Murphy
 
Many organizations have sick leave policies that indicate when an employee, absent after so many days on sick leave, needs to produce a doctor’s note when on leave under the Family Medical Leave Act (FMLA). This article is focused on your administrative staff.  

The Family Medical Leave Act provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period to eligible, covered employees for the following reasons: (1) Birth and care of the eligible employee’s child, or placement for adoption or foster care of a child with the employee;  (2) care of an immediate family member (spouse, child, parent) who has a serious health condition; or (3) care of the employee’s own serious health condition. It also requires that employee’s group health benefits be maintained during the leave.1 There are many facets of this Act that require one to be proficient in this rule and the many permutations created by fire department policy. Usually, human resources managers are at the tip of this spear to be proficient in its intent and application, but many organizations still get it wrong.

Many employers have intermittent leave policies that allow an employee to take sick leave under the provisions of FMLA and still work certain hours. For example, when an employee uses intermittent FMLA leave, the employer must subtract the amount of leave taken from the employee’s FMLA leave bank based on the employee’s normal work schedule. Therefore, if an employee who works eight hours a day, five days a week, needs to leave two hours early each day to attend physical therapy treatments, the employer would deduct one-fourth of a week from the employee’s FMLA leave bank.

Those qualified organizations2 following the FMLA guidelines may be subject to litigation, as one Illinois company discovered. In Jackson v. Jernberg Industries, Inc, 2010 WL 60921 (N.D. Ill. 2010), a judge in the Northern District of Illinois entered judgment against Jernberg Industries on a former employee’s FMLA interference claim despite evidence that the plaintiff deliberately violated his employer’s attendance policy and caused his own discharge. Jernberg Industries has a point-based attendance policy that mandates discharge when an employee accrues 14 points. Mr. Jackson accrued more than his share of points by (1) being tardy twice for reasons unrelated to his FMLA-certified wrist condition, (2) refusing to supply doctor’s notes to support 13 unscheduled absences purportedly because of his wrist condition, and (3) missing 10 consecutive days of work with no initial explanation and for reasons that ultimately had nothing to do with his wrist condition.
 
In spite of these factors, the court held that Jernberg Industries‘ attendance policy illegally “interfered” with the plaintiff’s exercise of FMLA leave by requiring him to produce a doctor’s note following each absence when his physician had already provided a single certification supporting the need for “intermittent FMLA leave” for one year.
 
This action by the company had a chilling effect on other employees taking FMLA under an intermittent leave policy, a practice the company wanted to terminate. The court held that a physician’s note requirement interfered with the employee’s FMLA leave because it was too onerous and might require the employee to provide doctor’s notes on a weekly or more frequent basis. 

The ruling does not address the legality of doctor’s note policies, as the court determined that recertification is the preferred method of verifying that an employee’s time off is FMLA-related.

FMLA regulations specifically permit employers to request recertification when (a) an employee asks for an extension of leave, (b) the circumstances described by the original certification have changed significantly, or (c) the employer receives information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.  

Recertification under FMLA permits employers to require an employee to provide a medical certification to support the need for leave because of a serious health condition of the employee or of certain members of the employee’s family. The FMLA also allows employers to require periodic recertification of the need for such leave.
 
It its deliberations, the court cited other cases that determined an employer could rely on the employee’s own “word” that his or her absence was FMLA-related. These so called methods of “verification” included (1) having the employee call in to report that his absence is FMLA-related, (2) calling the employee at home, and (3) having the employee submit a written, personal certification that a particular absence was FMLA-related. Employers are generally not in favor of this reporting method because the increase use of cell phones by staff does not provide a “verifiable” location of the sick or injured employee. Requesting that an employee provide the reason for his absence (whether verbally or in writing) is not the same as “verifying” the articulated reason.
 
These solutions to the “verification” issue do little to ensure that time off is FMLA-related and that staff do not abuse intermittent leave policies.
 
This case demonstrates how intermittent FMLA leave can have deleterious effects on a fire department when staff fails to report for work and simply attribute their unscheduled absence to FMLA-certified conditions and may be actually abusing the sick leave privileges.
 
Here, Mr. Jackson’s original medical certification did not identify the specific days on which he would need to be absent for his wrist condition. Thus, his employer had little or no warning as to when the plaintiff would not show up to do his job, and he came and went as he pleased.  

Recertification of a medical condition provides fire departments a process by which they can theoretically determine whether an employee is abusing intermittent leave. The fire department’s physician may be asked, as part of recertification, to analyze the staff member’s pattern of absences to determine if the employee’s condition and need for leave support these absences.

If the employee appears to be abusing his or her leave, recertification may be requested more frequently than every 30 days. 

This works best if the physician is retained by the fire department, since it eliminates a physician’s natural inclination to help their patients. However, in many states there is a freedom of choice on the part of fire department staff to seek their own medical practitioner. It is my experience that some members abuse this freedom and doctor-shop for the physician who will extend their medical leave under FMLA or other sick leave policies.  I have found that retaining your own physician provider creates a win-win situation for the employee and employer. The FMLA regulations also allow the employer to request a second or third medical opinion of the employee at its own expense if the employer questions the treating physician’s determination that the employee has not been abusing intermittent leave. That has a negative effect on good employer-employee relations, although a solid and well-written policy may alleviate these issues.
 
It has been opined that in Jernberg Industries, the employer may have fared better by simply discharging Mr. Jackson under its no-call,/no-show policy rather than giving him an opportunity to explain a 10-day absence after the fact.
 
It is good management practice that an employee not be allowed to flaunt established policies related to call-in or other notice procedures and to be able to claim when he is caught abusing the policy that he is on unscheduled intermittent leave. This is an abuse of policy; you can tighten this down considerably and get employees back to work sooner with conscious oversight by the department. As an alternative, employers may implement a light duty or alternative work assignment to keep the staff employee at work and under close supervision to ensure he is complying with medical direction.
 
On a full-time return to work, all employees on extended FMLA or sick leave should undergo a fit-for-duty evaluation by the department’s physician and engage in a work-hardening routine so the employee is in better condition to resume normal work.
 
As complex as FMLA is, it is best to consult with a labor and employment attorney or retain the services of a competent and knowledgeable human resources officer.
 
JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney; and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a contributing author, podcast host, and lecturer with Fire Engineering
 
References
[1] http://www.dol.gov/dol/topic/benefits-leave/fmla.htm
2 Not all employers are required to administer leave polices under FMLA. Check www.dol.gov for additional information and to see if your organization falls under these rules.
 
Endnote

Portions of this article were reprinted with permission from the “November 5, 2010 edition of the “CORPORATE COUNSEL”© 2010 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

The author of the original article, What the FMLA Regulations Don’t Tell Employers: Your Attendance of Sick Time Policies May Buy You a Lawsuit is Anne E. Larson, who is chair of Labor and Employment practice group with Much Shelist, a Chicago-based business law firm.

Ms. Larson concentrates her practice on management-side labor and employment matters and tries discrimination, retaliation, breach-of-contract, and non-competition/trade-secrets disputes in state and federal courts throughout the country.  

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