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Employee requests new intermittent leave plan? You can request new certification

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in FMLA Guidelines,Human Resources

Employees with serious medical conditions that require occasional time off are entitled to intermittent FMLA leave. If you grant leave and the employee makes a new request that wasn’t specified in the original medical certification, you can insist on a new certification.

Recent case: Clayton was an in­­structor at Wilberforce University, and also worked a second part-time campus job on Friday afternoons. An allergy sufferer, he had an intermittent leave certification that allowed him to take regular time off to have vaccinations during allergy season.

For five years, all went well. Then the university adopted a new instructional schedule that interfered with Clayton’s Friday job. He then requested a flexible schedule that included Friday hours off, ostensibly as intermittent leave. That’s when the university insisted on a new inter­­mittent FMLA leave certification.

Clayton sued, alleging that the request was interference with his right to FMLA leave.

The court disagreed. It reasoned that because Clayton asked for a different schedule—something he had never requested before—the school was entitled to a new certification. The court agreed and dismissed the claim. (Grigsby v. Wilberforce Uni­­ver­­sity, No. 3:10-CV-184, SD OH, 2012)

Final note: Check with your attorney before requesting recertification of intermittent leave, especially if the original certification cited a specific time period. Some legitimate reasons for a change: expiration of the time specified in the original certification, a change in the employee’s medical condition—or your suspicion that leave is being abused.

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