Employment Law Blog

News, trends and analysis in employment law and HR

May 01, 2013

Court backs employer on FMLA recertification of intermittent leave

Leave Laws 

Administering intermittent leave under the federal Family and Medical Leave Act (FMLA) can be a challenge for employers.

Administering intermittent leave under the federal Family and Medical Leave Act (FMLA) can be a challenge for employers. Planning and scheduling are especially difficult when the employee’s condition is episodic and unpredictable, such as migraine headaches. Sometimes the employee requests leave more frequently than what’s supported by the medical certification. What can be done? One option is to invoke the recertification procedures afforded by the FMLA.

In a recent case, the court upheld an employer’s right to require recertification, and its subsequent decision to terminate employment when an employee failed to comply. The employee was granted intermittent leave for migraine headaches, based on a medical certification from her health care provider. Later, the employee requested leave for her migraines in excess of what was indicated on her original certification. In response, the employer requested recertification, but the one provided by the employee still didn’t align with the amount of leave she was requesting. Once again the employer requested recertification, but the employee didn’t provide one and was terminated for unauthorized absences. The court decided that the employer followed proper procedures and had given the employee every opportunity to have her absences protected under the FMLA (Graham v. BlueCross BlueShield of Tennessee, Inc., 6th Cir, April, 2013).

Tips: This case serves as a reminder to employers that patience and adhering to the regulations can pay off when an employee is missing work in a way that exceeds or is inconsistent with their medical certification. The rules governing certification and recertification are fairly specific, so you should review your rights and responsibilities before requesting one from an employee. Review our Legal Guide, “FMLA Certification Procedures” (1558) and call your Vigilant representative to discuss a specific situation.

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