Friday/Monday Absences Can Cast Doubt on FMLA Leave

June 7, 2004 ( - Plan sponsors have long been hampered by provision of the Family Medical Leave Act (FMLA) prohibiting them from asking for recertification of the ailment more than once every 30 days, but for a period of Friday/Monday absences that is not always the case.

>In an opinion letter to the Equal Employment Advisory Council, the U.S. Department of Labor’s (DoL) Wage and Hour Division, the governmental agency responsible for administering FMLA, said an employer can request an employee to recertify their reason for taking FMLA absences when “the employer receives information which casts doubt upon the continuing validity of the certification.”   One instance they may cast doubt on FMLA excused absences would be a period of Friday/Monday absences.

>As an example of a circumstance under which a recertification would be appropriate, the DoL provides the example of fishy request for days off for migraine headaches sufferers.   “If a medical certification indicated the need for intermittent leave for two or three days a month due to migraine headaches, and the employee took such leave every Monday or Friday,” the DoL said, “a recertification under these circumstances could be justified.”  

>Further, the DoL provided guidance to employers who may request recertification.   “An employer who has observed such a pattern of potential abuse may ask the health care provider, as part of the certification process, if this pattern of absence is consistent with eh employee’s serious health condition.”   Even though direct contact between the employer and the health-care provider is prohibited, the DoL said the question could be added to the medical certification form to be completed by the health-care provider.    

With this ruling, employers will have more leeway to challenge whether or not the employee is eligible for FMLA leave, when they appear to be taking advantage of the system.   Previous readings of FMLA have widely held that employees with “chronic conditions” could not be required to recertify the ailment once more than every 30 days.

A copy of the opinion letter is at .