FMLA and excessive absences

Irie

Employee has been approved for intermittent FMLA and has gone beyond what the certification indicates for absences. I have spoken to him, done a recertification, yet he continues to be absent more than what the certification indicates.

What is my next step in trying to manage this situation? Thank you.

editorial

Attempting recertification was a great idea since FMLA allows an employer to do so if 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). Once you request recertification, the employee has at least 15 calendar days after the request to respond, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good-faith efforts.

If the employee does not provide the requested recertification within 15 days, and the employee has provided no information regarding his or her goodfaith efforts to cure, you may deny the FMLA leave.

It is the employee’s responsibility to provide the employer with a complete and sufficient certification
and to clarify the certification if necessary. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the healthcare provider, and does not otherwise clarify the certification, the employer may deny the FMLA leave.

Irie

editorial: Thank you for your reply. I know all of the things you stated about obtaining certification. But if the employee brings back a recertification that states the employee should be absent one time per month yet the employee continues to call off twice a week, what recourse do we have?

Can we deny any absences over and above the one absence per month that is stated on the certification and apply our attendance policy, or do we have to "live with" the absences the employee takes?

editorial

Thanks - You could either ask for recert due to changed circumstances (i.e., the need for additional leave beyond the most recent certification), or if the employee cannot or will not recertify for the additional leave, you can deny the additional FMLA leave (according to the rules for recert/good faith efforts, etc.) , as it is not FMLA protected.

You should also consider whether the employee's condition and need for additional leave would be protected under any other law (ADA reasonable accommodation, or other protected status).