The FMLA Blog

Employer May Require Doctor's Note to Support Paid Sick Leave In Addition to FMLA Medical Certification

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. 

Outside Advisors Not FMLA Employers Subject to Suit

Consultants, attorneys, and insurance company's who advise employer's regarding employee's requests for FMLA leave are not "employers" within the meaning of the FMLA subject to civil suit for money damages.

The ability of an employee to sue an outside company for allegedly giving erroneous FMLA advice was addressed by the court in Jensen v. AT&T and Metropolitan Life Ins. Co., No. 4:06-CV-842 (CEJ), 2007 U.S. Dist. LEXIS 83960 (E.D. Mo. Nov. 13, 2007).  In that case, Jensen was terminated by AT&T, her employer, on the advice of a representative of MetLife following the use of FMLA leave and disability leave.  MetLife recommended termination based on the belief that Jensen's disability rendered her unable to perform her work duties notwithstanding a physician's release allowing her to return to work. 

Jensen sued AT&T and MetLife alleging that her termination was in retaliation for her prior use of FMLA leave.  Jensen argued that MetLife improperly advised AT&T to terminate her employment because she exercised FMLA rights.  MetLife moved to dismiss the FMLA claim arguing that it was not an "employer" within the meaning of the FMLA and, therefore, could not be sued under that law. 

Applying the "economic realities test" of the Fair Labor Standards Act, to establish that MetLife was an FMLA-covered employer an employee must allege that the MetLife had some direct power over her employment.  Citing a number of cases involving health insurers and attorneys, the court concluded that Jensen had failed to allege that MetLife exercised direct power over her employment by advising AT&T to terminate her.

Comment:  Consultants, attorneys, and others who advise an employer regarding FMLA rights lack the requisite direct control over an employee's employment to be considered an FMLA-covered "employer."  The FMLA only permits an aggrieved employee to sue an "employer" for FMLA violations.  Note that organizations that take over complete control of another employer's FMLA administration decisions, such as a PEO, run the considerable risk of being found to be an FMLA-covered employer subject to suit for monetary damages.   

Of course, just because suit is not available under the FMLA against an outside consultant does not mean that an employee has no other recourse.  An employee may be able to sue the outside consultant under a tort or contract theory for their erroneous FMLA advice.  Depending on the terms of the contract, an employer may also be able to seek damages against the consultant for bad FMLA advice.

An upside to using outside FMLA consultants is that it may insulate the employer from double damages for a so-called willful violation.  Courts have found that an employer does not willfully violate the FMLA when they make a reasonable effort to determine their FMLA obligations, including seeking advice from outside professionals. 

Medical Inability to Attend Training Not Covered by the FMLA

In Lundy v. Town of Brighton, No. 06-CV-6280L, 2007 U.S. Dist. LEXIS 83132 (W.D.N.Y. Nov. 9, 2007), the employee, a police officer, alleged that the Town impermissible denied her request for FMLA leave to excuse her from attending Instructor Development Training to which she was assigned or engage in public speaking.  The court opined that the inability to attend training or engage in public speaking did not render Lundy unable to perform the essential functions of her position as a police officer. As such,the court found that Lundy failed to allege facts sufficient to establish that she had a serious health condition within the meaning of the FMLA because the condition did not prevent her from performing the essential functions of her job as a police officer. 

Comment: To be covered by the FMLA, the serious health condition must render "the employee unable to perform the functions of their position." The DOL regulations define this to mean that the employee is either unable to work at all, or is unable to perform any one of the essential functions of the employee's position.  29 CFR 825.115. 

Whether a function is essential is determined in accord with the requirements of the Americans with Disabilities Act, 29 CFR 1630.2(n).  Essential functions are the fundamental job duties performed in a position. The term "essential functions" does not include the marginal functions of the position. A function may be essential because:

• The position exists to perform that function.
• There are a limited number of employees available who could perform that function.
• The function is highly specialized.

Lundy reminds us that not every activity an employer requires an employee to perform is essential to the employee's job functions.  As such, an employee's request for leave to avoid doing ancillary activities due to a medical condition may not be covered by the FMLA.  To avoid FMLA violations, employers need to make sure that the employee's request for leave is due to incapacity that renders the employee unable to perform at least one essential job function. 

Keep in mind that it is just as illegal to deduct leave from an employee's 12-week entitlement where all of the conditions for FMLA leave have not been met as it is to deny FMLA leave where all the conditions exist. 

Intermittent Leave Expires When Approved Frequency Exceeded

Absences in excess of the approved frequency for intermittent leave, even if caused by the same serious health condition, are no longer treated as intermittent absences.  These excess absences may, however, be a new basis for FMLA leave.  Because these excess absences are not part of a series of intermittent absences but may be an independent basis for FMLA leave, the DOL FMLA rules governing intermittent absences do not apply. 

In Barnhouse v. Honda of America Mfg., Inc., No. C-2-04-0987, 2007 U.S. Dist. LEXIS 81562 (S.D. Ohio Nov. 2, 2007), the employee was terminated for violating Honda's attendance policy.  Barnhouse had been approved in January 2004 for intermittent leave absences of two episodes a month, with each episode being one or two days in duration (e.g., up to 4 days a month) for migraine-related headaches.  He immediately began to exceed the frequency.  He incurred 11 intermittent absences in March 2004, and 19 intermittent absences in April 2004. 

Under Honda policy, an employee returning to work from leave with work restrictions must notify Honda of his or her return at least 48 hours in advance, to allow Honda time to find a job assignment within the employees medical restrictions.  If Honda could not immediately accommodate the restrictions, the employee was not permitted to return to work.  In that case, Honda policy required that the employee cover the time away (e.g., two days) from work with available leave.  If the employee did not have leave available, the time away from work counted as an "occurrence" for purposes of Honda's attendance/discipline policy.  Barnhouse was told that if he incurred another occurrence he would be terminated. 

Beginning March 31, 2004, Barnhouse began to use intermittent leave on a daily basis, continuing until April 21, 2004.  On April 22, 2004, he returned to work and presented slips for his days off, as well as a return to work slip from his treating physician.  The return to work slip included work restrictions for an unrelated back condition.  He did not, however, give Honda the requisite 48 hours notice before showing up to work on April 22.   

Honda told Barnhouse he should return in two days.  Barnhouse did not have any paid leave to cover these two days.  As a result, his absences on April 22 and 23 were counted as occurrences for purposes of progressive discipline.  Barnhouse subsequently did not return to work, but began another extended absence.  Honda terminated Barnhouse for violation of the attendance policy.

Barnhouse sued, alleging that Honda interfered with his FMLA rights when it refused to return him to work on April 22.  Honda defended, asserting that it had the right to terminate Barnhouse for violating Honda's attendance policy.  Barnhouse, Honda argued, was properly charged an occurrence for April 22-23 when he failed to give two days notice of his return to work. 

Barnhouse argued that he should have been immediately returned to work from FMLA leave.  He also argued that Honda did not have the right to delay his return to work from intermittent FMLA leave.  Because the charged April 22 and 23 absences were intermittent leave for his migraines, Barnhouse argued that Honda was not permitted to delay his return to work for two days as generally permitted by 29 CFR 825.309(c) and 825.312(e). 

In pertinent part, 29 CFR 825.312(e) provides:

If an employee is able to return to work earlier than anticipated, the employee shall provide the employer two business days notice where feasible; the employer is required to restore the employee once such notice is given, or where used prior notices was not feasible.

The court found that be being off work 15 consecutive days in April, Barnhouse greatly exceeded the 4 approved intermittent absences a month he was allowed.  By exceeding the approved frequency of absences, the court found that his intermittent leave was converted to continuous leave.  According to the Court:

Once Plaintiff exceeded the approved leave amount, his need varied from that previously approved.  If Plaintiff intended to take April 22-23 as part of his FMLA leave, he was required to notify Defendant Honda.  Further, based on the change of circumstances and his extended time off, Plaintiff was obligated to provide two days notice of his return to work date in accordance with Honda policy.

Comment: The upshot of Honda is that absences that occur after an employee exceeds the approved amount of intermittent FMLA leave are no longer intermittent absences, but should be treated as an independent basis for FMLA leave.  As such, the employee is required to give notice of the need for FMLA leave.  Following the court's logic, an employer would also be entitled to request medical certification and a return to work fitness for duty certification for the excess leave.  A FFD certification is generally prohibited where an  employee takes FMLA leave intermittently. 

The decision imposes consequences where an employee exceeds the approved number of intermittent absences.  The DOL rules are silent in this critical area.   

Courts Find that Bizarre Behavior, But Not Chronic Tardiness, Provided Employer Constructive Notice of Employee's Need for FMLA Leave

Courts in two recent cases addressed whether an employee's actions provided the employer with sufficient, constructive notice that the employee may need FMLA leave to shift the burden of inquiry to the employer to determine if FMLA leave should apply. 

In Stevenson v. Hyre Elec. Co., No. 06-3501, 2007 U.S. App. LEXIS 24197 (7th Cir. Oct. 16, 2007), the Seventh Circuit found that the employee's bizarre behavior may have put her employer on constructive notice that the employee may need FMLA leave.  In that case, Beverly Stevenson had an extreme emotional and physical response to a stray dog entering her workplace at Hyre Electric.  After seeing the dog at work, Steven confronted her supervisor for several minutes, yelling, cursing, and screaming that animals should not be in the workplace. She left work early that day, and called in the next several days complaining that she wasn't feeling well."  When she returned to work a few days later, Steven angrily and aggressively confronted Hyre's president, yelling and cursing about dogs in the office.  The explosive meeting lasted eight to ten minutes, and was overheard by other employees.  Stevenson filed a complaint with OSHA regarding the dog incident. 

Prior to the incident, Stevenson had been a model employee with no prior discipline.

Stevenson left work and went to the hospital complaining about headaches for three days.  EKG and CAT scans came back normal, although she was diagnosed as suffering from stress and anxiety.  Stevenson called in sick the next two days.  She returned a few days later and, when she discovered that the contents of her desk had been boxed up and moved to another room, she called the police and went home. Stevenson left the Hospital report on her supervisor's desk. 

Hyre sent Stevenson a letter informing her of her FMLA rights, and requested medical documentation.  Stevenson called in sick the next few days, during which she saw several doctors.  Stevenson did not return to work the next several days, allegedly on the instruction of her Union.  She was subsequently terminated.

The Court initially found that Stevenson was put on notice that she might have an FMLA condition when she was diagnosed with anxiety and stress.  The diagnosis triggered her FMLA obligation to notify her employer within one or two working days that she may need FMLA leave.  The court found that Stevenson failed to notify Hyre failed to give her employer notice that she needed leave for an FMLA covered serious health condition when she subsequently called in "sick" or by reporting that she was not "feeling well." 

The court rejected the argument that Hyre's notification to Stevenson of the availability of FMLA leave constituted an admission that Hyre had notice that the leave was FMLA-qualifying. The court observed:

... if notice could be presumed whenever an employer asks an employee if she needs FMLA leave, then the FMLA notice requirement would be rendered meaningless.

Absent direct notice from the employee, the court next considered whether the employee provided constructive notice of the need for FMLA leave, as permitted by Byrne v. Avon Products, 328 F.3d 379 (7th Cir. 2003).  In Byrne, the Seventh Circuit recognized that an employee was excused from providing direct notice of the need for FMLA leave in two situations: (1) where the employee is unable to communicate his or her illness to the employer; or (2) clear abnormalities in the employee's behavior provide the employer with constructive notice of a serious health condition.

The Seventh Circuit reversed the award of summary judgment to the employer after finding that district court had improperly merged the two Byrne exceptions.  The district court had found that the Bryne exception did not apply because Stevenson's condition did not prevent her from notifying her employer of the need for FMLA leave.  The Seventh Circuit reiterated that, under Byrne, "unusual behavior alone can be enough to notify a reasonable employer that an employee suffered from a serious health condition.

The Seventh Circuit went on to find that whether Stevenson's behavior was sufficiently "bizarre" as to provide constructive notice that of the existence of a serious health condition to shift the burden of inquiry to Hyre was a triable issue of fact.  The court observed:

Lengthy encounters of yelling and swearing at one's superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with the employee's calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of act as unusual enough to give Hyre notice of a serious health condition.  Of course, the fact-finder could find that Stevenson just had a bad temper that erupted during the period in question.

In Brown v. Eastern Maine Med. Center, No. 06-60-P-H, 2007 U.S. Dist. LEXIS 76967 (D. Me. Oct. 15, 2007), the trial court rejected the employee's argument that her chronic lateness provided her employer with constructive notice that she needed FMLA leave "especially in the complete absence of any explanation from Brown that her late arrivals were "medically necessary" as required for FMLA intermittent leave."  The court also noted that Brown also failed to provide notice of the anticipated timing and duration of her need for intermittent leave, as required by the FMLA regulations.  The court noted that the late arrivals were a common, not an unusual, occurrence.      

Comment: Under Byrne, bizarre behavior by an employee may place an employer on constructive notice that the employee has a serious health condition sufficient to shift the burden of inquiry to the employer.  The serious health condition does not have to render the employee unable to directly request FMLA leave.  Under Byrne, an employee who is unable to articulate a need for leave due to a serious health condition may, however, be excused from directly requesting FMLA leave.  This is a separate exception from the bizarre behavior exception to the general rule that an employee must provide his or her employer with direct notice of the need for FMLA leave.  An employer that fails to inquiry further and denies the employee FMLA leave runs the considerable risk of violating the FMLA.      

Under Brown, an employee's absences alone may not be sufficiently "unusual" or "bizarre" to constitute constructive notice that the employee, under Byrne, has a serious health condition requiring FMLA leave.

Until more circuits weigh-in on Byrne, employers shoulld add FMLA considerations to the mix when considering whether to take disciplinary action against an otherwise good employee who has engaged in unusual behavior.   The Seventh Circuit covers Wisconsin, Illinois, and Indiana.