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Can an employer discipline an employee for exceeding the frequency of expected absences indicated on an FMLA medical certification?

I’m actually going to answer this question tomorrow during a free webinar sponsored by the Disability Management Employer Coalition (DMEC), where we will cover key FMLA and ADA cases from 2019.  I hope you can attend. [Use the code 19COMPLIANCE4]

In the webinar, I will share the story of Tori, an executive assistant for an alarm monitoring company, who suffered from reactive arthritis. Because of this condition, she needed to be absent from her job for treatment and flare ups. Her doctor signed off on certification indicating she would need FMLA leave up to two days per month for flare ups and four hours, twice per month, for treatment.

Like many employers, Tori’s employer had an attendance point system in which employees were assessed points for unexcused absences.  At 10 attendance points in a 12-month period, an employee is terminated.

Tori’s pattern of absenteeism over a 12 month period might be familiar to many employers:

  • On six dates over a three-month period, Tori’s FMLA absences exceeded the amount certified by her doctor;
  • She missed several scheduled days because “her knee gave out”;
  • She failed to provide timely notice of the need for FMLA leave on multiple occasions without excuse; and
  • She was absent for a series of non-FMLA related absences

When Tori exceeded the absences indicated on her certification form, her employer asked her doctor to recertify these additional absences.  In the section of the recertification form addressing the frequency and duration Tori required for her flare-ups, her doctor wrote simply: “Refer to prior FMLA form.” As a result, Tori’s employer did not increase Tori’s monthly FMLA allotment of approved FMLA absences.  Notably, it also assessed attendance points for those absences that exceeded the frequency noted on the initial certification.

These absences later were used to terminate her employment.

That’s an FMLA violation, claimed Tori, in a later-filed FMLA lawsuit.

The Court Ruling

Not so fastTori, said the court. For this court, the equation was rather simple.  If an employee’s absences “exceed what was estimated in the certification,” the employer has the right to “notify the employee and give them a reasonable opportunity to cure the deficiency.”

When Tori’s physician recertified Tori “for the same frequency and duration of leave as his earlier certification,” the court determined that the employer “lawfully denied [Tori’s] FMLA leave for absences exceeding the amount certified (and later recertified) by her physician.”

The employer had the right to use those unexcused absences as part of the attendance point total. FMLA claim dismissed. Evans v. Cooperative Response Center (pdf)

Insights for Employers

Boom! 

For years, I have been counseling employers precisely along these lines. When an employee’s absences significantly exceed the frequency identified in the certification, the employer should recertify (usually along with a letter explaining the pattern). If the physician does not change the frequency despite the clear opportunity to do so, the employer arguably has the right to issue discipline for the excessive absences.

Now, I have a court case to support my counsel, as the above case gives us the authority we need to discipline employees in these situations.

As I’ve blathered on in previous posts, if Section 308 of the FMLA regulations (which allows you to recertify for excessive absences and contact the doctor regarding Tori’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion when the doctor is given the opportunity to change the frequency the second time around. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.

In this second go around, the doctor now has confirmed that he stands by his position that we can expect Tori to miss work two days per month because of her arthritis. It seems to me eminently reasonable — and now defensible in an FMLA lawsuit — to discipline an employee like Tori for the excess absences.

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.