FMLA or Attendance?

LindaS

I have an employee who is approved for intermittent FMLA. Our company has a policy that states any employee gone from work for 3 days or more is required to present a doctor's certification allowing them to return to work. We enforce this for both FMLA and non-FMLA situations.

This employee left work on Tuesday (5/18) for FMLA and missed the rest of the week (FMLA). She also called in FMLA yesterday. This AM she returned to work and was asked for the slip and her response was that the dr. was mailing it. I asked her when it was mailed and she said Friday (we should have seen it no later than Monday). She also stated that the slip allowed her to return to work yesterday.

I sent her home and informed her that she needed to contact the dr. and have them get in contact with me, or fax me the slip.

Should I just continue counting this as FMLA or would these absences be counted towards our attendance policy?

mushroomHR

If this were an employee in my company I would treat it like FML and not attendance. We have a point-based attendance policy and if I counted it as attendance the employee would be getting points and possibly fired. (Also, management wouldn't be happy because we very rarely get rid of anyone for attendance.) I don't know how the courts would look on this so I count these incidents as FML. We administer our FML very loosely.

cthr

If she has already been approved for intermittent FMLA, you can't require a note every time she is out. You can ask the doctor to recertify every 30 days, I believe.

LindaS

CTHR -

In response to your post, as long as we administer our non-FMLA absences the same as the FMLA ones, we have the right to request the documentation, which we do.

smaces_twin

I think you are ok with requiring a note because you require it of everyone.

As for FML, are her absences related to the intermittent paperwork? If so, count it as FML. If you are not sure, I would count it as unexcused until I know otherwise.

cthr

An employer is not entitled to certification of fitness to return to duty when the employee takes leave as described in Section 825.203-Intermittent leave may be taken for a serious health condition which requires treatment by a health care provider periodically, and may include leave of periods from an hour or more to several weeks.

LindaS

Cthr -

Employees on FMLA are not given "carte blanche" to do whatever they want. They are still held to the same policies as other employees. As long as we treat absences for both FMLA and non-FMLA reasons consistently, we are fine. I am not asking for a new certification, simply a note from the physician (or other health care provider) that the employee is okay to come back to work.

cthr

[font size="1" color="#FF0000"]LAST EDITED ON 05-26-04 AT 02:32PM (CST)[/font][br][br]Again, if you read the policy, if she is on approved intermittent FMLA you cannot require a doctors note for FMLA related abscences. If the abscence is not related to FMLA you can, but your post said it was FMLA related.

I pulled this directly off the DOL website

29 CFR 825.310 - Under what circumstances may an employer require that an employee submit a medical certification that the employee is able (or unable) to return


(g) An employer is not entitled to certification of fitness to
return to duty when the employee takes intermittent leave as described
in Sec. 825.203.

smaces_twin

[font size="1" color="#FF0000"]LAST EDITED ON 05-26-04 AT 03:23PM (CST)[/font][br][br]She is not asking for a fitness to return for duty certification. She is asking for a doctor's note to to verify that the absence was valid. She does this for EVERYONE. It does not matter if they are on intermittent or not. It is a policy completely separate from FML and IMHO as long as she is not requiring someone who uses FML to do something others are not, she's OK.

edit: I'm sorry, she is asking for a fitness to return to duty. I thought she was just asking for a note verifying that they were sick. I still think she is OK, however because she requires it of everyone. FMLA does not allow you to skirt valid company policies.

LindaS

Cthr -

I am familiar with that portion of the regulations but I think we are talking about two different things...

We have a policy that states anyone out for illness for three or more days is required to present a return to work slip. This is uniformly applied and ALL employees are required to do this.

Now, if this employee were to miss one or two days, no I would not require anything from them as our policy doesn't require it. Once they hit that third day, they must present the slip.

As long as I uniformly apply the policy I believe I'm good to go. One more thing, I am not asking for a new certification, just something that excuses the person for the days they missed.

BTW - I received the slip on the employee late last night, notified the EE (she decided to take "points" today) and she will be back to work tomorrow.

Thanks for all your help.

cthr

Don't confuse certification of fitness for duty or return to work with certification of a serious health condition, they are two different things. This section addresses return to work not certification of the illness. WHen the doctor gives you a note saying so and so can come back to work that is considered certification of fitness for duty.

The doctor has already certified the illness-they aren't required to give you something every time.

LindaS

I think we are going to just have to disagree on this point. FMLA, like I have said before, does NOT grant carte blance to the employee. They are still required to follow company policies. This is NO different than an employee being required to call-in for their absences. Case law on this subject has been quite clear. If the company has a uniform policy, this applies to FMLA and non-FMLA situations.

I'm not asking for certifications every time an employee misses, just once they reach the level that has been defined in our attendance policy.

I think I am on solid legal ground on this issue.