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.
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 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.
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.