circumstances described by the previous certification have changed significantly

A week doesn’t go by without a client asking me whether they can discipline an employee for exceeding the number of absences allowed on their FMLA medical certification. The fact pattern usually goes something like this:

Johnny is an assemblyman at your 200-employee facility. He assembles johnson rods. He also has a chronic bad back, and it tends to hurt the most on Mondays and Fridays when he often calls off work. The only predictable thing about his otherwise underwhelming performance is that, every August, he provides you — like clockwork — an updated FMLA medical certification supporting leave for his back.

Johnny’s certification calls for 3 flare ups per month for 1 day per flare up. This morning, he called 30 minutes before his shift to report that his back hurts and he won’t be in today. The call-in procedure requires that employees call in at least one hour before their shift, but he claims he was in too much pain to call on time.

This is Johnny’s 4th flare up this month.

Because Johnny has incurred a 4th absence for his back this month (when his medical certification calls for only three in a month), what can we do?

Can we discipline Johnny for this absence?

Can we at least seek recertification?

Let’s discuss.

Can we discipline Johnny for exceeding the frequency indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Johnny’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.  29 CFR 825.308(c)(2)

Has Johnny’s frequency changed significantly?

In my opinion, no. And in one of those rare moments, the Department of Labor actually would agree with me. [Not that I take any pride in this.]

Keep in mind – the employee’s health care provider owns no crystal ball, so frequency and duration of absences is a product of the HCP’s best estimate based on his/her medical judgment at that time. Although we’d be willing to beg HCPs to be more specific and accurate on frequency and duration, they often cannot, as the threshold for pain and the timing of a recovery differs for every individual.  Really, when it comes down to it, can any medical professional predict precisely how many flare ups his/her patient will suffer from in one month? My friends, we’re talking best educated guess.

If you have been involved in a DOL FMLA investigation over the past couple of years, you also know quite well that the DOL takes the position that “one” absence over the frequency indicated in the medical certification does not constitute a significant enough change to trigger recertification. In taking this position, the DOL employs the reason I identified above. Bottom line, the agency argues that the certification is just an estimate, and one absence over frequency does not trigger the recert process.

So, does this mean an employee’s absences must be double the number indicated on the certification, as reflected in the migraine example given the regulations above? Not necessarily, but almost always, it means more than one over.  In Johnny’s case, I would recertify when Johnny reaches five absences in a month, as this is arguably more of a significant departure from the number indicated on his certification.

But Is There a Pattern of Misuse That The Employer Can Go After Here?

Johnny isn’t out of the woods yet. Notably, he often calls off on Mondays and Fridays, claiming his back has flared up.

This is indeed suspicious. And if this hokey pattern continues over even a modest period of time (e.g., over a series of weeks or in back-to-back months), we arguably have the right to reach out the employee’s physician. Here, we follow the FMLA regulations (29 CFR 825.308) and ask Johnny’s physician to confirm for us whether this Monday/Friday pattern is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can get your own sample letters for these situations).

Eight times out of 10, Johnny’s doctor simply will rubber stamp Johnny’s pattern and confirm that these absences are related to his bad back. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Johnny’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Johnny’s Monday/Friday pattern somehow is not consistent with his need for FMLA leave.

In Johnny’s case, though, he knows we’re onto him and keeping tabs on him.  And his doctor realizes it, too.  Over time, these requests will result in more honest behavior from the employee — and physician.

Can We Discipline Johnny AFTER The Health Care Provider Responds?  Here’s My Recommendation…

In these “20-percent” situations, can we discipline Johnny for any absences that exceed the frequency, as now confirmed by his physician?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by DOL to give guidance as to how employers might consider handling these situations.  Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation?  You issue discipline for any absences that exceed the frequency and duration.  

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Johnny’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s now updated medical opinion. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.  In this second go around, the doctor now has confirmed that he stands by his position that we can expect Johnny to miss work three times per month at one day each because of his bad back. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for these excess absences.  I recommend standing by this approach until the employee provides a contradictory medical opinion.  See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.

Porn and the FMLA. This has all the makings of one big, fat men’s soap opera.

Johnnie Walker was a longtime police officer with the Pocatello Police Department, and he was tasked with investigating Scott and several other members of the police department’s administrative team because these jokers allegedly were accessing porn on their work computers.

We never did learn what came of that porn investigation.

But as the story goes, Scott later became the Pocatello police chief. And like all good soap operas, Chief Scott apparently was still peeved that Johnnie led the investigation into his alleged computer habits.

In other words, it was pay back time.

Shortly after becoming chief, Johnnie took FMLA leave. Chief Scott used it as a quick opportunity to conduct surveillance on Johnnie’s whereabouts during his leave of absence. For good measure, Scott also drafted a memo to Johnnie’s personnel file outlining all the work Johnnie did not complete while on FMLA leave.

The police department never denied Johnnie’s FMLA leave. In fact, it gave him the FMLA leave he requested and then some. And he was not terminated. Still, Johnnie set off for the courthouse and filed both FMLA interference and retaliation claims.

The court had concerns about Chief Scott’s actions too. In allowing Johnnie’s FMLA claims to be heard by a jury, the court was troubled that surveilling an employee without any basis might “chill” an employee from taking FMLA leave:

Walker contends that the Police Department engaged in actions which had the effect of deterring the exercise of FMLA rights. Specifically, when defendants had doubt about the validity of Walker’s medical condition, they did not simply request another medical opinion as contemplated by the regulations. Instead, they tracked Walker, and surveilled his activities on his own property by setting up a police surveillance camera and helping him set them up on his neighbor’s fields . . . There is a genuine issue as to whether the Police Department’s invasive surveillance of Walker’s private activities would “chill” his use of FMLA, and whether they were negative consequences of Walker taking FMLA leaveWalker v. City of Pocatello

Insights for Employers

Often enough, clients ask me whether they have the right to conduct surveillance on an employee they suspect is abusing FMLA leave.  Courts generally support an employer’s right to do so where there is a clear concern that the employee is abusing FMLA leave, as the court did here in one of my previous posts.

Policies

Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest with their use of leave.  Before heading down this path, however, it is critical that surveillance is consistent with your personnel policies (courts typically want to know that employees have been on notice of the possibility of surveillance) and any applicable collective bargaining agreements.  Where a CBA is involved, surveillance also may need to be bargained with the union.  Also, maintain a policy regarding the fraudulent use of FMLA leave.  Not currently in your policy? Have your employment attorney update your policy now, as this type of provision is a gem to hang your hat on when you have to defend an FMLA claim involving a (former) employee suspected of misusing FMLA leave.

Are Second opinions Necessary?

Must the employer seek a second opinion before surveilling an employee?  Not necessarily, and I think the court overstepped here by insisting that the police department should have done so here.  Before pulling the trigger on surveillance, however, it is critical that the employer have an objective basis for believing that an employee is abusing a leave of absence, for instance:

  • Inconsistent reasons for leave
  • Significant changes in frequency or duration of the absences, such that leave appears to be suspicious
  • Reliable information you receive from the employee’s co-workers about his misuse of leave
  • Suspicious patterns of absences over a short or longer period of time

Have an Objective Basis for Seeking Surveillance

In Johnnie’s situation, it appears as though the police department fell woefully short of establishing an objective basis for seeking surveillance. Because there was no honest belief that Johnnie was misusing his FMLA leave, there was no objective basis for conducting surveillance. Consequently, a court — and therefore, a jury — is left to believe that the surveillance (and the notes to file) are attempts to chill an employee’s use of FMLA leave. As this particular court points out, that may very well be an FMLA violation.

Sick-note.jpgOne of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees.

Take, for example, Joe, who suffers from irritable bowel syndrome (IBS). On the FMLA medical certification you received for Joe, his physician indicated that he will be absent for this condition three times each month for one day each episode.  But here’s Joe’s pattern over the previous two months: in month one, he was absent five times (one day each) and in month two, he was absent four times, but one of these absences was four days in duration.

Can we discipline Joe for exceeding his frequency and duration indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Joe’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.  29 CFR 825.308(c)(2)

Joe’s circumstances clearly have changed significantly (i.e., more than double the frequency in month one, and a lengthy duration for one absence in month two).  Therefore, the regulations tell us we can do the following:

As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. 29 CFR 825.308(e)

Being the exceedingly reasonable, compliant employers we are, we follow the regulations and ask Joe’s physician to confirm for us whether this change in frequency and duration is consistent with Joe’s serious health condition and his need for leave. If your employment counsel is worth anything, they should be able to draft for you an articulate letter to the doctor explaining the pattern you have observed and your concerns about whether these absences are consistent with Joe’s need for leave.

The Response from Joe’s Physician

Eight times out of 10, Joe’s doctor simply will rubber stamp Joe’s pattern and confirm that these absences are related to his IBS. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Joe’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Joe’s pattern somehow is not consistent with his need for FMLA leave. If we’re lucky, in one in 100 situations, the doctor will tell us in not so many words that Joe is “full of c#&@”!  [In light of Joe’s situation, pun definitely intended.]

Can We Discipline Joe?  Here’s My Recommendation…

In these “20-percent” situations, can we discipline Joe for any absences that exceed the frequency and/or duration, as now confirmed by Dr. Zhivago?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by the Department of Labor to give guidance as to how employers might consider handling these situations.  Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation?  You issue discipline for any absences that exceed the frequency and duration.  

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Joe’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.  In this second go around, the doctor now has confirmed that he stands by his position that we can expect Joe to miss work three times per month at one day each because of his IBS. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for the excess absences.  I recommend standing by this approach until the employee provides a contradictory medical opinion.  See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.