New FMLA Certifications can be requested by the employer

by on January 26, 2009 · 1 Comment POSTED IN: HR Info Center

Were employer’s FMLA compliance demands legit?

“You know what?” production worker Lem Hastie said dismissively to HR coordinator Giles Profitt. “Just forget about the FMLA certification. 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 intermittent FMLA leave,” Giles said. “All that we tried to get is a more specific FMLA certification about your need for 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 a FMLA certification from my doctor, I gave it to you, just like every year since I was diagnosed with diabetes. You asked for another FMLA certification because supposedly you couldn’t figure out how much time I’d be taking off each time. So I got 2nd certification. Now, you want a 3rd certification!”

New FMLA certification

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

“Look, 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 get out of here and talk to a lawyer.”

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

Did he win?


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

The company didn’t interfere with Lem’s right to intermittent FMLA 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.

Employee FMLA compliance means getting specific
Employee FMLA compliance means give you specific information about their need for FMLA leave, especially when it’s the more problematic intermittent kind.

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 needed FMLA time.

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

1 Comment on This Post

  1. Anonymous
    February 25, 2010 - 6:35 pm

    If I took 56 days of FMLA in 2009 for hernia surgery, can I file another FMLA request in 2010 for another surgery when the two surgery’s are unrelated?

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