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Intermittent absences during approved FMLA

Intermittent absences during approved FMLA
Smith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (S.D. Ohio June 10, 2009).
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

CallTech Communications policy required employees to submit a doctor's note verifying that every intermittent absence is directly related to the employee's medical condition is on file. The policy applied to intermittent FMLA leave. If the employee provided the doctor's note, absences covered by the note would not be used against the employee pursuant to the employer's points-based attendance policy.

Stephanie Smith was employed at CallTech Communications for a little over a year until her terminated. Throughout her employment MS. Smith suffered from chronic major depressive disorder. As a result of her condition, she had attendance issues. She requested, and was granted, intermittent FMLA leave for her condition. Ms. Smith accumulated points for absences that placed her job in jeopardy. Management told her that she could avoid being terminated if she provided doctor's notes covering sufficient absences to reduce her attendance point total. CallTech gave Ms. Smith three days to provide the doctor's notes. When she did not provide the doctor's notes within the three-day period, MS. Smith was terminated.

Smith sued alleging interference with the FMLA. The court did not agree. The court found that CallTech 'was clearly entitled to some form of medical documentation for Ms. Smith's absences even though she had been approved for intermittent FMLA leave for her depression and had verbally informed her supervisor that her absences were related to the condition." However, the court found that the three-day period she was given to provide the doctor's notes was not reasonable as a matter of law. The court opined:

While CallTech may not have been required to give Ms. Smith fifteen days to comply with its request, it did have to provide her a reasonable amount of time under the exigencies of the situation to obtain any notes from her doctor.

Mr. Bosland Comments: The case illustrates two points: First, an employer's policy may require an employee to provide a doctor's notes to link their current intermittent absence to an approved FMLA condition. In Smith, the policy did not require the employee to run to the doctor every time. The policy specifically allowed an employee to provide the doctor's note after a few absences.

Second, although the amended regulations (825.302(d)) require an employee to abide by an employer's usual and customary requirements for requesting leave, employers would be well-advised to adopt policies that set a reasonable period of time for the employee to provide the doctor's note, with some flexibility that takes into account the circumstances of each case. A draconian policy with a very short turn around time that also fails to take into account the totality of the circumstances runs the risk of being found invalid. An employer that enforces such a policy may interfere with an employee's FMLA rights. Interfering with an employee's FMLA rights is an expensive problem to be avoided.

Full post as published by New York Public Personnel Law on June 22, 2009 (boomark / email).