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Court Rules Employer Violated FMLA By Requiring Doctor's Note Within 3 Days


June 26, 2009

A federal district court in Ohio recently granted partial summary judgment to a plaintiff who complained that her employer threatened to fire her if she did not provide a doctor's note verifying her need for FMLA leave within three days. Smith v. CallTech Communications, LLC.

Stephanie Smith worked as an operator in a call center operated by CallTech Communications. On January 31, 2006, Smith submitted a request for FMLA leave and a health care provider certification form completed by her physician, indicating that she suffered from major depression and dysthymic disorder. The company approved Smith to take intermittent leave under the FMLA. Under the company's attendance policy, employees accumulated "points" for each absence, tardy arrival, or early departure. While the policy did not assess points for FMLA leave, it required employees to provide a note from a physician verifying that each absence, late arrival, or early departure was FMLA-related.

On May 28, 2006, Smith's supervisor and manager notified her that she had exceeded the number of points permitted under the absence policy. They advised her that her employment would be terminated unless she provided a doctor's note verifying that some of her absences were FMLA-related by May 31, 2006. Smith became despondent, and stopped reporting to work on May 31.

Under the FMLA rules -- both old and new -- when an employer requests medical certification of an employee's need for FMLA leave, it must allow the employee at least 15 days to return the certification. CallTech argued that this requirement did not apply to its requests for doctor's notes, because it was merely seeking "verification" that the employee's absences were FMLA-related, not a detailed medical "recertification." The court expressed its skepticism on this point, asking "If CallTech's demand for a doctor's note was not a request for recertification, then what was it?" However, the court ultimately declined to decide whether the request for a doctor's note was a request for re-certification subject to the 15-day requirement, holding that CallTech was at least required to give Smith a reasonable period of time to provide the doctor's note. Three days, it found, was not reasonable.

This case emphasizes a key aspect of administering FMLA leave: be reasonable. CallTech lost this case because it was not reasonable to expect the Smith to make a doctor appointment and provide a note within three business days of the request. Had it requested the notes earlier or given Smith the time she needed to see her doctor before terminating her employment, the outcome may well have been different. Because the rules typically require employers to provide at least fifteen days to return a medical certification, employers are well-advised to use this as a baseline for any such request -- and to allow additional time if an employee cannot meet that deadline despite good faith efforts to do so.

Another aspect of this case that deserves commentary is the issue that ultimately did not decide the case: was CallTech allowed to ask for a separate doctor's note, given that it had already received a medical certification and approved Smith to take intermittent leave? Some have read the court's opinion to suggest that employers may request a doctor's note to confirm each absence is FMLA-qualifying, but employers should be cautious before adopting this approach. The FMLA rules are relatively clear as to when and how often an employer can request medical information from an employee. There is no mention of the right to require separate doctors' notes outside of the normal certification / recertification process spelled out in the rules. That being the case, the Department of Labor or a court could conclude that requiring doctor's note each time an employee uses intermittent FMLA leave amounts to interference with an employee's FMLA leave rights. Of course, employers may still require a doctor's note for non-FMLA-protected leave, and as a condition for using sick days or other paid leave benefits.

For more information on the FMLA or to listen to our FMLA Insights Podcast, please visit our FMLA Web site, FMLARegs.com. If you have a question about this bulletin or would like to speak with a Franczek Radelet attorney about an FMLA issue, e-mail us at FMLA@Franczek.com.

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