Human Resource Blog

Proof of FMLA Day

I have an employee that has scheduled a nice long weekend Friday through Tuesday as FMLA. Do I have the right to request proof for these days, such as doctors notes etc?

This is a problem that many employers encounter. However, once the employees condition has been certified, and FMLA granted, there is little that you can do about a single Friday/Monday absence. You cannot require that employees certify or present a doctors excuse for each FMLA absence –even if it occurs on a Monday or Friday. That would violate the FMLA regulations, and nullify the whole purpose of FMLA.

However, there is an action that some HR pros take when an employee has a pattern of repeated Friday/Monday FMLA absences. Many doctors are not pleased to see FMLA abused. Fax a letter to the employees doctor. Attach a calendar that shows the employees absences (so it is clear that there is a Friday/Monday pattern.) Ask the doctor in the letter to either check that a) Yes, this consistent with the patients treatment plan or b) No, this is not consistent with the patients treatment plan and sign it.

Note that this technique has not been approved by the U.S. Department of Labor, and at some point in the future they may determine that it is unacceptable. Also note that the HR person should send this communication — under the new 2009 FMLA regulations, it is a violation for the employees immediate supervisor to contact the doctor or argue with him or her. (If you do not believe the employee genuinely has a serious health condition, you can require a second and even third opinion of the health  provider certification — but you must pay for them.)

The new FMLA regulations also permit the employer to have the serious health condition recertified every 6 months. Many HR pros attach a calendar of absences to that certification, and have the doctor sign off that it is consistent with the treatment plan.

But none of this applies to a single Friday/Monday absence under FMLA. To play devils advocate for a moment, in some cases an employee may genuinely schedule a treatment  that will take 3 days of recovery on a Friday, out of consideration for the employer. If the employee scheduled the treatment for a Tuesday, they would be off for 6 consecutive days.