DoL Issues Opinion Letters on FMLA and Employee Drug Testing

February 16, 2005 ( - The Department of Labor has released two opinion letters regarding the Family and Medical Leave Act (FMLA).

>The first letter release by The Wage and Hour Division stated that an employer could require employees who are on leave for illness to provide proof off such an illness that goes beyond the notice required under the FMLA, as long as unpaid FMLA leave is not jeopardized.   Essentially, employers could require that employees provide a proof of illness in order to receive paid sick leave, according to BNA.

According to the letter, employees who take FMLA-qualifying leave for their own serious health conditions but fail or refuse to provide “proof of illness” when requested are eligible for FMLA-protected leave but are not eligible for paid sick leave. They may also substitute accrued personal or vacation leave for FMLA-qualifying leave absences without being required to provide proof of illness.

>As long as an employer’s plan regarding sick leave is uniform across all employees, then the plan is allowed under FMLA, according to the letter.

>The second letter was on the topic of drug testing, according to BNA. An employer can request that employees returning from FMLA-leave take a drug test within three days of returning to work. According to the letter, any employee who refuses to do so is treated as insubordinate.