Is it against the law to ask those employees to turn in a fitness for duty medical certification?

In this case, an employee took intermittent leave, though his last absence was six weeks long. When he came back, the company asked him to have a doctor certify that he was able to return to work.

When he didn’t turn in a certification, he was fired. The employee sued.

Department of Labor regulations state that companies can require fitness for duty certifications — except when employees are returning from intermittent leave.

But the company argued it had a right to know if the employee was able to work after he was absent for six straight weeks.

The court agreed, ruling that the DOL rule was unreasonable in this case. It conflicted with another reg which states that employees don’t need to get their jobs back if they can’t perform the essential functions of the position — and often, the only way to know that is to get the word from a doctor.

The employee’s case was thrown out.

Cite: Phipps v. County of McLean

In the case, a woman took intermittent leave starting in September, when she had worked enough hours the previous year to be eligible. She continued taking leave through the end of December.

The company calculated leave entitlement based on the calendar year. When she asked for more time off in January, the request was denied.

Why? Because she hadn’t worked 1,250 hours in the previous 12 months. She sued the company, claiming FMLA was unlawfully denied. She argued that she’d already been approved for leave and could continue taking it since she was eligible when she first needed time off.

The court didn’t buy it. Once the new leave year started, the employee had to be re-approved. By her logic, employees could take intermittent FMLA leave forever, even after they no longer met the eligibility requirements.

Cite: Davis v. Michigan Bell Telephone Co.

As much as intermittent FMLA can help employees who really need it, there are always those who try to game the system. Here are some tools that help HR and managers fight abuse.

1. Certification form

The most important tool in HR’s arsenal: the medical certification form.

Some employees abuse FMLA by getting a carte blanche certification for intermittent leave and then taking it whenever they feel like taking a Monday or Friday off.

To fight back, HR needs to make sure employees’ doctors get specific about the frequency and duration of leave they need. If a worker returns a form with phrases like “intermittent” or “as needed,” you can send them back to the doctor to get more details.

In one recent court case, an employee turned in a form that listed the frequency of her condition as “completely unpredictable.” The company asked for a more detailed form, but she never turned it in and wasn’t offered leave.

She sued, but the court sided with the company (Cite: Tome v. Harley Davidson Motor Co.).

2. Reschedule

A possible sign of FMLA abuse: An employee needs leave for doctor’s appointments — that happen to be scheduled every Friday afternoon.

In that case, the company can ask her for a certification form explaining why the leave needs to be taken on Fridays. If there’s no medical reason, HR can ask her to reschedule.

3. Recertification

Another way to make sure leave is only taken by those who really need it: Ask for recertification as often as you can.

The law allows companies to ask for new paperwork every 30 days, or more often if:

• details about the employee’s need for leave change (like if he or she needs off more frequently, or for a longer duration each time), and
• the employer gets information that casts doubt on the legitimacy of the employee’s need for leave.

For example, if an employee gets approved for intermittent leave, takes sporadic absences for a while, but later starts taking time off every Friday afternoon, the employer can ask for a recertification.

4. Check in

Some companies have policies requiring HR reps to call employees at home on FMLA leave to make sure they aren’t using it as a substitute for vacation time.

Those policies have held up in court — in fact, some courts have even given the OK to companies that hired private investigators to keep an eye on suspected leave abusers.

One warning, though: Companies need to be careful about how they use the information they gather. In one recent case, an employee took FMLA, and a co-worker who lived on the same block saw him outside building a porch.

He was fired for taking unnecessary leave — but he took the company to court and won. Just because he was well enough to do some construction didn’t necessarily mean he could still do his job (Cite: Weimer v. Honda of America Mfg., Inc.).