Beware asking for extra ‘proof’ of FMLA need

Unless you have a convincing reason to believe an employee is abusing FMLA leave, don’t pester her for additional proof that she is actually caring for a child, spouse or parent.

Demanding more than the standard medical certification may amount to interference with an employee’s right to take FMLA leave, as a recent federal appeals court case demonstrates.

Recent case: Jill worked for a medical facility providing hospice services. Her employer required employees to use their paid time off in conjunction with FMLA leave. It provided regular warnings when an employee’s paid time off began to run low.

However, nowhere did it explain to employees that additional time off under the FMLA might be available.

When Jill’s parents—who did not live nearby—became seriously ill, Jill asked for FMLA leave. She provided medical certifications showing her parents had serious health conditions. Jill was warned about her falling paid time off balances as she took leave for several days at a time throughout the year.

FMLA Compliance D

Then, when she was down to unpaid FMLA leave, she began receiving requests from HR for more extensive documentation about the care Jill was providing to her parents.

For example, the hospice wanted copies of meal receipts for food purchased in her parents’ town and other evidence showing Jill had traveled back and forth on the dates when she was out on FMLA leave. Jill complied with the requests.

But then she was terminated for alleged poor performance.

Jill sued, alleging interference with her right to take FMLA leave.

Now the 11th Circuit Court of Appeals has weighed in. The court concluded that the hospice did interfere with Jill’s right to take FMLA leave by discouraging her from using it.

First, the hospice had warned Jill about the consequences of running out of paid time off without also mentioning that the FMLA might provide additional protected leave. Second, the court concluded that demanding more than medical certifications without some reasonable suspicion of leave abuse also discouraged the use of FMLA leave. (Diamond v. Hospice of Florida Keys, No. 15-15716, 11th Cir., 2017)