You don’t have to ask for FMLA certification for every absence

by on
in FMLA Guidelines,Human Resources

Balancing business needs against employees’ legitimate FMLA rights is one of the hardest parts of managing absenteeism.

Now there’s one less thing to worry about. A new case makes it clear that you don’t have to request an FMLA certification every time an employee calls in sick. Reserve those requests for times when employees indicate they may be suffering from a serious condition.

Recent case: Cherri Lawson-Brewster had a terrible attendance record. Then, after calling in sick for several days in a row—and only after her employer told her she was in danger of termination—she finally went to a doctor.

The doctor diagnosed depression based on job stress. The doctor provided a note excusing her from work for two days. The employer still fired Lawson-Brewster because it decided that she wasn’t entitled to FMLA leave. The rationale: She hadn’t been incapacitated for three days.

She sued, charging interference with her right to FMLA leave. She argued that when she called in sick, she should have been automatically given an FMLA certification form.

But the court disagreed. It wrote, “[T]he employer must be made aware that the absence is due to a serious illness so that the employer can distinguish it from ordinary sick days.” Otherwise, employers would have to “investigate virtually every absence to ensure that it does not qualify for FMLA leave.”

In other words, it’s up to the employee to let her employer know her condition is potentially serious. She doesn’t have to specifically use the words “FMLA leave,” but simply saying she is sick is not enough. (Lawson-Brewster v. River Valley School District, No. 4:06-CV-58, WD MI, 2008)

Leave a Comment