It is not a violation of the FMLA for an employer to require an employee to support their request for paid sick leave with medical documentation even though the employer has separately requested that the employee provide medical certification for the same absence to determine if the leave is covered by the FMLA.
The issue was addressed in Carroll v. Potter, No. 3:05-CV-108-S, 2007 U.S. Dist. LEXIS 82737 (No. 7, 2007). The case involved Valaine Carroll, a Postal Service supervisor. Carroll left work early on November 18 after becoming ill. She called the Attendance Control Office the same day, and requested FMLA leave to run concurrent with paid sick leave. Carroll would eventually remain out of work for approximately 3 weeks. During her absence, the Attendance Control Office provided Carroll with the necessary FMLA paperwork requesting that she provide medical certification of her condition to the Office. Two days after the medical certification request by the Attendance Control Office, Carroll's supervisor requested that she provide "medical documentation supporting her absence." Carroll's request for FMLA leave was approved by the Postal Service FMLA Coordinator on December 2.
Carroll subsequently received a letter of warning for failing to complete a mail count the day before she went out on FMLA leave. She sued alleging, in pertinent part, that the Postal Service violated the FMLA when her supervisor requested medical documentation two days after the Attendance Control Office had requested FMLA medical certification for the same absence. Carroll alleged that this second request for medical documentation by her supervisor interfered with her FMLA rights. The court disagreed.
The court looked to the paid leave substitution requirements of 29 CFR 825.207(c). Pursuant to those requirements, paid leave may be substituted for unpaid FMLA leave "to the extent the circumstances meet the employer's usual requirements for the use of sick/medical leave." Under Postal Service policy, supervisors are responsible for approving sick leave and have the discretion to require employees to provide medical documentation of absences. Because Carroll requested paid sick leave for her absence, and Postal Service policy permitted her supervisor to require medical documentation as a condition or approving paid sick leave, the court found that the supervisor's separate request for medical documentation did not interfere her FMLA rights.
Comment: The decision demonstrates that where paid leave runs concurrent with unpaid FMLA leave an employer may require an employee to meet the procedural requirements for both paid leave and the FMLA in order to receive the benefits of both without running afoul of the law.
Keep in mind, though, that if Carroll had failed to provide the medical documentation to her supervisor but did provide the medical certification to the Attendance Control Office, all things being equal, she would be entitled to FMLA leave but not paid sick leave. That is, an employee's failure to meet the procedural requirements for paid leave permits the employer to deny the employee paid leave only. To deny FMLA leave the employer must separately determine that the employee has failed to meet the FMLA's procedural requirements. Employer's frequently run afoul of the FMLA by denying the employee both paid and FMLA leave where an employee fails to meet the requirements for paid sick leave.
Finally, I observe that Carroll may have had a better argument had she alleged that the Postal Service interfered with her FMLA rights by requiring that she provide FMLA medical certification. While the FMLA permits an employer to require the employee to abide by the procedural requirements for paid leave, it also provides that, if the paid leave certification requirements are less onerous than the FMLA certification requirements, an employer may only impose the less strict paid leave requirements. 29 CFR 825.207(h).
It is often the case that employer paid leave policies allow an employee to provide very general information (e.g., a doctor's note) as support for an employee's request for sick leave. If that is the case, an employer would not be able to require an employee to submit the type of detailed medical certification permitted by the FMLA where paid leave runs concurrent with FMLA leave. Rather, the employer would be limited to the far less detailed medical information permitted for paid sick leave. Because of this fact, employer's need to take a hard look at their paid leave policies and medical documentation to ensure that, where paid leave is substituted, the employer still is entitled to receive sufficient medical information to manage the employee's leave usage.
In Carroll, because the point was not argued we don't know that the Postal Service's paid sick leave policy is less stringent in terms of medical certification than is the FMLA. Even assuming that the Postal Service's paid leave policy required less medical information than is permitted by the FMLA, because her FMLA leave was approved Carroll would not have been able to establish damages as a result of any technical violation by the Service. As a result, the case would have been dismissed anyway.
FEDERAL SECTOR APPLICATION: Because all federal sector variants of the FMLA recognize that an employee must meet the requirements of paid leave in order to substitute paid leave for unpaid FMLA leave, the Carroll decision should serve as persuasive authority on the issue.