Human Resources News & Insights

Can employers require certification to return from intermittent FMLA?

A recent court case tackles a question many employers face when workers come back from intermittent leave:

Is it against the law to ask those employees to turn in a fitness for duty medical certification?

In this case, an employee took intermittent leave, though his last absence was six weeks long. When he came back, the company asked him to have a doctor certify that he was able to return to work.

When he didn’t turn in a certification, he was fired. The employee sued.

Department of Labor regulations state that companies can require fitness for duty certifications — except when employees are returning from intermittent leave.

But the company argued it had a right to know if the employee was able to work after he was absent for six straight weeks.

The court agreed, ruling that the DOL rule was unreasonable in this case. It conflicted with another reg which states that employees don’t need to get their jobs back if they can’t perform the essential functions of the position — and often, the only way to know that is to get the word from a doctor.

The employee’s case was thrown out.

Cite: Phipps v. County of McLean

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  • melanie

    we have a supervisor that is salaried. He missed three days due to an illness. His history shows that over the last few months he has used all his vacation and all but 21 hours of PTO. Now he thinks he will try to use FMLA.
    How does this work for a salaried employee?

  • Angela


    The FMLA rules still apply in this situation. Remember that FMLA is unpaid leave to attend to matters etc. If this employee no longer has any time allocated to be able to be paid for the time that they will be out, then they will not be paid. Depending on the issue, this employee could be able to qualify for disability to make up for the monies that they will be missing.

  • Larry

    Why the company didn’t certify his absences due to FMLA is boggling. They may be able to fall back on his previous absences when the medical certs come in and state his illness was treated for some time.

  • Lucy

    If we require our employees to use their vacation/comp time before taking FML, do we start counting from their first day off or after they run out of vacation/comp pay? (which would then be unpaid time)

  • Steve

    Six weeks out on FMLA does not sound like intermittent use to me. Rather, it sounds like continuous FMLA use. Is there any documentation that defines what exactly intermittent and continuous FMLA is?

  • Mike R

    It is interesting how this is focusing only on the FMLA concerns. Under the FMLA the certification is doen by the employees doctor and at the employees expense. If I have any reason to think that an employee cannot perform their duties, I can send them for a fitness for duty exam at company expense.

    This has been about who pays for the exam, not whether an employer can have an employee examined.

  • Susan

    Lucy -
    Do you mean that while your employees are on FMLA leave that their vacation time must be used first before their leave will be unpaid? Employers can require the employee to use accrued paid leave, such as vacation or sick leave for some or all of the FMLA leave. Vacation and/or paid sick time runs concurrent with FMLA leave. (The exception to this rule is in Arkansas for women who are taking leave for the birth of a child. The employee can elect to take unpaid leave only.) If your case is not the exception, then you would start counting from the first day the employee is out.

  • Lucy

    To Susan: Thank you so much for your response and clarification. Yes that is what I meant, that while our employees are on FMLA leave their vacation time must be used first, before their leave will be unpaid. Since I am in Texas my case is not the exception so I will start the count from the first day the employee is out.
    I really appreciate your help. I love this website because people are always so helpful!

  • melanie

    Larry, to your comment. When he was gone, I assumed he used vacation or his PTO time, not at any point did he mention FMLA until the last absences. We did not know he was sick using vacation time.
    One question is still as a salaried employee, I did not think that an employer could deduct money if they used FMLA time?

  • Susan

    To Melanie: FMLA leave is unpaid leave, however employers can require the employee to use accrued paid leave, such as vacation or sick leave for some or all of the FMLA leave. Vacation and/or paid sick time runs concurrent with FMLA leave. For salaried employees, they must use up all of their paid leave first before they can be unpaid.

    So in answer to your question, your employee would be paid his 21 hours of PTO, the the remainder of the time is unpaid.

    Normally when a salaried employee misses a FULL day of work, any accrued paid leave (PTO, vac or sick time) is used to cover the missed time regardless of the reason they are missing work. Only once they have exhausted ALL accrued paid leave can their absences for any FULL day be unpaid…unless he has an employment contract that guarantees him an annual salary with no clause for adjustments even if he misses more days than he has paid leave for.

  • melanie

    Susan, thanks for your comment! That helps to clear up alot of the questions that I had. Does an employee not have to ask for FMLA, or should we as an employee offer that? Most of the time we are not aware of the illness until after the fact. Thanks again

  • Susan

    Melanie – It would be a good idea to have a leave request form that asks whether the leave will be for FMLA reasons and the type of FMLA leave requested. FMLA law allows employers to require 30-days advance notice when the need for leave is foreseeable.

    Employees are required to give notice “as soon as practable” when the need to take FMLA leave is not foreseeable – generally, this means at least verbal notice within one or two business days of learning of the need to take FMLA leave.

    If you are not aware until after the fact, if the employee wants the leave counted as FMLA leave, the employee has up to two business days after returning to work to give notice that the leave was taken for an FMLA-qualifying reason. (They will usually do this if the employee does not have any available paid leave otherwise, the time can be counted as unexcused.)

    If the employer has not been contacted within 2 business day by either the employee (or the employee’s representative if the employee is incapacitated), then your company’s policy on absenteeism should be enforced.

    I hope this helps.

  • Sandra King

    If employee is on intermittent FMLA time for a family member medical condition and also has Flexible Leave Time, ( all time, vacation,sick and personal combined) it means they are not allowed to take any days for themself without being added towards the FMLA 12 weeks?