Suspect employee plays fast and loose with FMLA leave? Check medical certification

The FMLA allows employees to take intermittent leave for chronic conditions that sometimes flare up. Employers are entitled to information about the intermittent leave employees take and can request certification from the employee’s health care providers.

The certification should specify the condition, the time off needed and the expected frequency of the leave. Employers then have to abide by the certification—unless the employer receives information that casts doubt on the certification. For example, being late and using the intermittent leave excuse can backfire.

Recent case: Kent Neely, who has chronic sinusitis, got his doctor to provide a medical certification specifying that he needed intermittent FMLA leave “one to three times per month.” The certification said the duration of each episode probably would be “one to three days.”

Then Neely started using the intermittent leave excuse when he was tardy. But since the certification mentioned only full-day absences, the employer demanded more information. Neely sued, alleging the employer violated his right to FMLA leave.

Not so, concluded the court. Employers can question intermittent leave when the certification and the leave time claimed are inconsistent. In this case, the employer was rightly suspicious when Neely played the intermittent leave card whenever he was late for work. (Neely v. United States Postal Service, No. 03-6566, ED PA, 2007)