Can an Employer Discipline an Employee for Excessive FMLA-Related Absences Before Requesting Recertification? The Simple Answer is NO.

Matt was a correction officer for the Camden County Board of Chosen Freeholders, which as an aside, sounds like something straight out of Harry Potter and the Sorcerer’s Stone.

Before I digress further, Matt served as one of the caretakers for his mom, who suffered from dementia and required daily care. Matt sought FMLA leave, and he obtained medical certification from his mom’s doctor supporting his absence once per month for up to five days.

Fair enough. The problem, though, is that Matt took leave on January 6, and then again on January 14 and 28, exceeding his frequency by two episodes.  In response, his supervisor recommended that Matt be disciplined for excessive absences, which later led to his suspension.

Hmmmm, not good. 

In its defense, the employer reported that it requested recertification and that it disciplined Matt only after he failed to provide recertification. But it requested recertification verbally, which of course, Matt denied when he later sued his employer for FMLA violations.

The Ruling

The court summed up the two key issues in Matt’s FMLA lawsuit quite well:

If the employer properly asked Matt to recertify and he failed to do so in the provided time [that is, within 15 days], then his absences at issue are not FMLA-approved absences and the protections that the FMLA affords do not apply. See 29 C.F.R. § 825.313(c) . Likewise, if the employer never properly asked Matt to recertify, then his absences would be protected under the FMLA and it would not be able to discipline him for taking these protected absences.

When Matt denied that the employer verbally requested recertification, the court grew skeptical. Because the employer and employee disagreed on this critical issue, the court refused to dismiss Matt’s FMLA claims, sending the case to trial. Calio v. Camden County Board of Chosen Freeholders (pdf)

Ugh.

Insights for Employers

Several lessons for employers here:

1. Clearly, Matt exceeded the frequency of absences in his initial certification by a significant number, which the employer properly recognized as a trigger for recertification. Great work, so far. No question, when an employee is absent three times when he should have been absent only once, this is cause for recertification.
2. The initial problem, however, is that the employer requested recertification verbally. What happens when you verbally request recertification? Almost 100% of the time, your employee denies that you ever requested it. Although the FMLA regulations technically allow you to request recertification verbally, why would you ever leave this to chance? Every time, all the time, make a written request for recertification so that you have a clear paper trail proving the request.  As the court noted above, if the employer could have established that it requested recertification and that Matt failed to comply, the case was theirs for the taking. The employer failed to put the request in writing, so it will now spend another hundred grand paying a guy like me to proceed to a jury trial, where uncertainty reigns supreme.
3. As this court decision makes clear, when an employee exceeds the frequency of absences on his certification, you cannot automatically discipline the employee. You must first seek recertification to establish whether the absences are protected by the FMLA. Only after requesting recertification and giving the the employee and physician a chance to recertify can you then take action. Friends of this blog may recall that, in a previous post, I highlighted an employer who did it the right way . . . and won.

Recertify first, then discipline if the recertification doesn’t support the absences.

Only then are you in the clear.

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.