Were FMLA intermittent leave demands legitimate?

by on January 13, 2010 · 3 Comments POSTED IN: HR Info Center

“You know what?” production worker Lem Hastie said dismissively to HR coordinator Giles Profitt. “Just forget about the FMLA intermittent leave. I figured out last night that I don’t need this nonsense at age 59. I’m taking early retirement.”

“We’ve never said we’re unwilling to have you take family medical leave,” Giles said. “We’ve tried to get more specific medical certification about your need for FMLA intermittent leave, that’s all.

“But if what you really want is to retire, we wish you all the best,” Giles added. “I’ll get the forms you need.”

“Forgive me if I have a little chuckle here,” Lem said, in the same challenging tone.

“You asked for certification from my doctor and I gave it to you, just like every year since I was diagnosed with diabetes. You asked for another certification because supposedly you couldn’t figure out how long I’d be taking off each time. So I got another certification. Now, you want a third!”

New certification

“Yes, we do,” said Giles. “I still can’t figure out what your doctor is trying to do. In the initial certification, he said you had hypertension and diabetes and needed entire days off. But you tended to take half days off. Then, he sent us a note that said you needed, ‘1-4 half day(s) during each . . . week’ and we have no idea what that means. Just tell us how much time you need off, please, and everything will be fine.”

“It’s pretty obvious you’re giving me the runaround,” said Lem. “I’ve had enough. I’ll take my own sick time, then I’m going to talk to a lawyer.”

Lem retired, then sued for interference with his FMLA intermittent leave rights.

Did he win?

The decision

No, Lem lost. A judge said the company could seek clarification of his doctor’s confusing certification.

The company didn’t interfere with Lem’s right to FMLA intermittent leave, the judge said. The company was certainly well within its rights to keep asking the doctor to clarify how much time, how often, Lem would need to recover from which diseases.

Unfortunately, each time Lem went back, the doctor seemed to write even more confusing certifications.

Getting specific

You can expect employees to give you specific information about their need for family medical leave, especially when it’s the more problematic FMLA intermittent leave.

Although you can’t request an employee’s medical information, you can check on it through your own doctor if the employee agrees.

If you don’t trust the employee’s doctor, you can request a second and even, in some cases, a third opinion. It can also help if one doctor can’t seem to clearly certify the need for FMLA intermittent leave.

Cite: Rutschke v. Northwest Airlines, No. 04-3212, D. Minn., 8/30/05. Fictionalized for dramatic effect.

3 Comments on This Post

  1. Fed-up
    April 7, 2010 - 11:11 pm

    Unfortunately this is another great liberal idea that has backfired. Too many take advantage of this situation. Is it no wonder we are in an economic crisis and jobs are fleeing the USA. No FMLA in India or Mexico, I’ll move my company there next.

  2. Fed-up
    April 7, 2010 - 7:11 pm

    Unfortunately this is another great liberal idea that has backfired. Too many take advantage of this situation. Is it no wonder we are in an economic crisis and jobs are fleeing the USA. No FMLA in India or Mexico, I'll move my company there next.

  3. Cyberj3646
    August 15, 2011 - 9:20 am

    I am a manager. Many of our employees are from another country.  Every year, between the months of May and September, when we are in the busiest part of our year, employees claim one of their family members is very sick.  They are supposed to put in for FMLA at least 30 days in advance unless it is an emergency.  They claim it is an emergency with 3-4 weeks notice and then get a doctor back in their home country to certify their claim.  The time they take off from work is usually two months consecutively which is very disruptive to business operations.  

    In this situation, can we hire another employee to fill the spot as long as when the employee returns they are still employed but in a different area, same pay and same title.  This happens every year.  We are in a union environment also and the Union does nothing to get this resolved.Our concern is how can it be an emergency with 3-4 weeks notice and they have been working as much over time for the past 8-10 months to save money for their trip. Some who have left for a valid emergency left with 2-3 days notice. That’s understandable.  Plus, when these employees return home, they get medical or dental work done on themselves, many get married and when they return, their family member is suddenly better.We feel this is blatant abuse but can’t prove it even though a Dr. back in their country certifies their claim. The employees have really learned how to beat the system because who’s going to call half way around the world to verify this.  Is there a different way to verify their claim so we are not violating their rights?Thanks in advanceConcerned Managers  

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