Question: One of our employees is medically certified for intermittent FMLA leave due to anxiety, which the health care provider said could happen once or twice a month and last for up to two days. The employee normally works five days a week and recently took an entire week off for anxiety. Since the certification only allows for two days at a time, can we count the last three days as unexcused under our attendance policy?
Answer: No. The employee has a medical certification that approves them for intermittent FMLA leave for anxiety and they’re entitled to take up to 12 weeks of leave for that condition. The medical certification (WH-380-E) requires a health care provider to make their best estimate of the frequency and duration of the employee’s need for leave. The FMLA regulations allow you to ask for recertification, even when the original certification was obtained recently, if the circumstances such as the duration or frequency of leave have changed significantly from the prior certification (see 29 CFR 825.308(c)). You must give your employee at least 15 days to obtain the requested recertification, and you can provide the health care provider with a record of the employee’s absence pattern and ask if the need for leave is consistent with the pattern.
The regulations are silent on what you can do if the recertification says that the leave the employee took wasn’t medically necessary, so it’s unclear whether you could retroactively designate the excess time as unexcused. Retroactively changing time from protected to unexcused carries risk, particularly because the employee wasn’t on notice that the time might not be covered. Going forward, however, you can likely hold your employee more tightly accountable to the terms of the recertification although there is still some risk, as the health care provider’s new opinion is also merely an estimate. See our Legal Guide, FMLA: Certification Procedures and contact your Vigilant Law Group employment attorney for advice in tricky FMLA situations.