Over the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success! During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice: ] I wish I could answer this question with an unequivocal “YES,” but my guidance would go against the weight of court decisions on this very topic.I wish, for instance, that I could advise employers that it is perfectly legal to maintain a policy in which employees who take FMLA leave for a doctor’s appointment must return to work with a doctor’s note in hand.Employee Bob has now called into work sick for a total of twenty-eight days in the last three months.This last time, he indicated that he "just could not shake this pneumonia" and he regrets that he did not stay in the hospital longer when he was first diagnosed.– whether it is immediately after the incident, or two months later.
Step 1: Employer Eligibility and Rights and Responsibilities Notice Obligations Never forget that the first step is always to provide the initial FMLA eligibility and rights and responsibilities notice when the employer "acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason." This is a reasonably low threshold and may be triggered by nothing more than a passive conversation with an employee.
Robert was one of Oak Harbor’s employees and requested leave for back pain.
He submitted complete and adequate medical certification indicating a need for intermittent leave for flare ups and ongoing monthly water therapy with his physician.
Interestingly, the company determined that nearly 90 percent of Robert’s absences over a six-year period fell in conjunction with a holiday or weekend.
When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined. For this court, when the employer required a doctor’s note for every FMLA-related absence — doctor’s appointment or not — it was tantamount to requesting re-certification over and over again. Antti (pdf) Insights for Employers So what do we do now?