A common problem for employers is addressing abuse of unscheduled intermittent FMLA leave. It is all too easy for an employee to obtain a medical certification from a health care provider (HCP) for a chronic condition that supposedly flares up on an intermittent basis. This seemingly grants the employee a free pass to call out from work whenever s/he desires, without disciplinary consequences. Because the leave is on an intermittent basis, the employee never uses up the full 12-week complement of leave within a 12-month period, and the employer faces the possibility of the situation continuing indefinitely. And, of course, the use of intermittent leave negatively impacts the employer’s ability to appropriately staff the workplace and accomplish the work.
The regulations provide some mechanisms for detecting and deterring abuse of intermittent FMLA leave. In addition, the courts have recognized other steps that may be taken by employers to ensure the appropriate use of FMLA leave. I’m going to discuss these options in a five-part series.
In part 1, we’ll consider the authentication of medical certifications and insufficient certifications.
Authentication of Certifications
Sometimes, an employer may have reason to question whether the certification provided by the employee was actually prepared by the HCP. In those cases, the employer may contact the HCP directly, without notifying the employee, and provide a copy of the certification in order to verify that the certification form was completed and/or authorized by the HCP who signed the document. 29 C.F.R. § 825.307(a). The employer may not ask for any additional medical information, however.
Employees may present an ambiguous medical certification stating that leave is required for the condition “as needed” or “when the condition flares up,” without any additional information on the probable duration of “flare ups” or frequency. Such certifications may be considered insufficient. Pursuant to the regulations, the HCP should provide an estimate of the frequency and duration of the episodes of incapacity and the medical necessity for intermittent leave. 29 C.F.R. § 825.306(a)(7). If an employer receives such insufficient information on a medical certification, it must advise the employee of the insufficiency and state in writing what additional information is needed. 29 C.F.R. § 825.305(c). The employee has seven calendar days to provide sufficient information, unless s/he is unable to do so despite good faith efforts, in which case the employer must provide additional time. The consequences of failing to return the certification or remedy the deficiencies within the time frame should also be explained – that FMLA leave may be denied.
Next time, we’ll take a look at second and third medical opinions of the serious health condition.