What documentation should we require when employees seek intermittent FMLA leave?
Quick Answer
When an employee initially seeks intermittent FMLA leave for their own serious health condition or the serious health condition of a covered family member, their employer may require them to submit a certification from a healthcare provider in support of the request.
Legal Perspective
Kollman & Saucier
Timonium, Maryland
The DOL form WH-380-E is the form employers should use for an employee’s serious health condition, says author and employment law attorney Darrell VanDeusen of the firm Kollman & Saucier. If the employee needs leave for a family member the employer should provide form WH-380-F. More information can be found here.
Relevant Case Law
Oak Harbor Freight Lines, Inc. v. Antti
Novak v. MetroHealth Medical Center
Smith v. Hope School
HR Insight
Alternative HR, LLC
Sioux Falls, South Dakota
You can certainly require the employee to provide information about the need for leave, as well as supporting documentation from the individual’s health care provider, says Dan Oakland, CEO of Alternative HR. When there is intermittent and ongoing leave needed, you can ask for periodic updates from them and their healthcare provider.
Contour Hardening
Indianapolis, Indiana
When applying for intermittent FMLA, the employee will need to bring an FMLA Medical Certification form to their healthcare provider and return it to their HR Department within 15 days, says HR Manager Regan Brown.
This form provides the necessary information an employer will need to determine if the employee is qualified for leave through FMLA.
Everde Growers
Houston, Texas
Recruiter Carmela Bozulich says: You should require a doctor’s or medical certificate verifying the parameters of the FMLA leave, regardless of whether it’s for the employee or a family member. You should also provide the form to the employee stipulating the FMLA leave rules and parameters.
The Cost of Noncompliance
Intermittent FMLA mistake leads to ADA suit: Jury awards back pay, damages to worker
Who was involved: West Meade Place, a privately owned rehabilitation and healthcare facility in Tennessee, and a former employee.
What happened: The worker was under a doctor’s care and took medication for her anxiety. In February 2015, she was hired as a laundry technician at the company. She did not face any discipline until November 2015, when she asked for intermittent leave to address her anxiety. The company fired her, concluding that she didn’t qualify for FMLA leave because she was unable to perform her job duties. Later, the company offered an alternate justification for termination: that she submitted a fake doctor’s note. However, the company never produced the purported fraudulent note. The EEOC alleged the company violated the ADA by firing the employee because it regarded her as having a disability. A district court dismissed the claim, but the Sixth Circuit remanded the case, finding a reasonable jury could find the company fired the woman because it regarded her as having a disability.
Result: The jury returned a verdict for the EEOC on behalf of the former employee, who will receive:
- $6,146.72 in back pay, and
- $6,000 in compensatory damages.
Info: Jury Returns Verdict for EEOC in ‘Regarded As’ Disability Case Against West Meade Place, 11/1/22.
FMLA paperwork dispute leads to termination, $60K payout
Who was involved: Beaver County, Pennsylvania, and a former correctional officer who was fired from her position at the county jail.
What happened: The employee suffered from a heart condition that was covered under the FMLA. She was required to work mandatory overtime from January 2020 until May 2020, which affected her health. Due to her health condition, her doctor recommended she work no more than eight hours in a shift and 40 hours in a week. Jail supervisors said they wouldn’t honor the eight-hour restriction from the notice her physician submitted because the paperwork did not include a duration.
The doctor submitted additional documentation indicating the worker had a lifelong condition and would need the modified work schedule for the rest of her career. The jail then informed the worker that due to her request for a modified schedule, it was “left with no option” other than to terminate her employment.
Result: County commissioners approved a resolution to pay $60,000 to settle the lawsuit after a magistrate judge recommended letting the case proceed to trial, finding the employee stated a plausible FMLA interference claim.
Info: Resolution No. 060922-16, 6/9/22.
Termination right after FMLA leave? DOL recovers $61K in back pay for fired worker
Who was involved: Green River Health District, a public health department in Kentucky, and a longtime health care worker who took FMLA leave.
What happened: A DOL Wage and Hour Division investigation found the employer received the worker’s FMLA certification letter – and just three hours later – sent a company-wide email to all staff members, notifying them of a job posting for the employee’s position.
The employee was out for about a month, and then provided return-to-work documentation and returned to the job. About two weeks later, the employer informed the employee that it would not renew the employee’s work contract.
In the DOL’s view, the alleged conduct violated the FMLA.
“The Family and Medical Leave Act provides critical workplace protections so that workers do not have to make the impossible choice between providing for themselves and their loved ones and seeking necessary medical treatments,” Louisville, Kentucky’s Wage and Hour Division District Director Karen Garnett-Civils said in a statement.
Result: The DOL recovered $61,224 in back wages for the employee.
Info: DOL recovers $61K for healthcare worker wrongfully terminated for exercising rights, 11/15/23.
Worker fired the day she was scheduled to return from FMLA leave: Court upholds $55K award
Who was involved: Yorozo Automotive Tennessee, Inc., an automotive manufacturer, and a welder who requested FMLA leave for surgery.
What happened: A welder took FMLA leave to have surgery. Her doctor scheduled a follow-up for the day after she was to return to work. Six days before she was due back, she asked for an extension and was told to get a statement from her doctor. Believing she had 15 days to do so, the welder did not immediately get the statement. The company fired her the day she was scheduled to return to work – even though her doctor faxed a statement to the company that same day. The welder sued under the FMLA.
Result: The welder sued under the FMLA and obtained an award of $55,000. The Sixth Circuit upheld the award, noting that federal regulations require employers to allow 15 days for certification submissions.
Info: Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549 (6th Cir. 2006).
Key Takeaways
- An employee seeking intermittent FMLA leave for their own serious health condition or the serious health condition of a covered family member may be required to submit certification from a healthcare provider to support the request.
- Employers cannot require such certification if the leave is requested to care for a newborn or a child placed for foster care or adoption.
- The employee seeking leave generally has 15 days to provide the certification requested by the employer.
- Generally, an employer may require recertification every 30 days.
- If an initial certification says the minimum duration of the serious health condition is more than 30 days, the employer generally must wait until that minimum duration expires before requesting recertification.
- Employers can seek recertification in less than 30 days if the circumstances described in the initial certification change significantly or if it has good reason to believe that the existing certification is no longer valid.
- In all cases, the employer may ask for recertification every six months.
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