Dealing with FMLA intermittent-leave nightmare
Q. We have an employee with a chronic condition. We granted her intermittent FMLA leave provided she gave us a certification each time she takes time off for the condition. We have to constantly remind her to turn in the form. She also won’t call HR when she is sick, but leaves a message with the front desk. This makes it hard to track her usage. Can we terminate for refusing to follow the instructions laid out on the FMLA approval form? — T.C., Michigan
A. It sounds like you are treading on thin ice. For chronic conditions, employers can request recertification no more often than every 30 days and only in connection with an employee’s absence (unless you receive information that casts doubt on the employee’s stated reason for the absence).
The U.S. Labor Department has said that an employee’s pattern of absences (e.g., taking Mondays and Fridays off for FMLA leave) may, by itself, cast doubt on the employee’s stated reason.
Bottom line: You may need to change your recertification practices to comply with the FMLA, and you need to be very careful to avoid an unlawful discharge claim. Unless you have reason to doubt she’s being honest, stick with requesting certification no more often than every 30 days.