A week doesn’t go by without a client asking me whether they can discipline an employee for exceeding the number of absences allowed on their FMLA medical certification. The fact pattern usually goes something like this:

Johnny is an assemblyman at your 200-employee facility. He assembles johnson rods. He also has a chronic bad back, and it tends to hurt the most on Mondays and Fridays when he often calls off work. The only predictable thing about his otherwise underwhelming performance is that, every August, he provides you — like clockwork — an updated FMLA medical certification supporting leave for his back.

Johnny’s certification calls for 3 flare ups per month for one day per flare up. This morning, he called 30 minutes before his shift to report that his back hurts and he won’t be in today. The call-in procedure requires that employees call in at least one hour before their shift, but he claims he was in too much pain to call on time.

This is Johnny’s 4th flare up this month.

Because Johnny has incurred a 4th absence for his back this month (when his medical certification calls for only three in a month), what can we do?

Can we discipline Johnny for this absence?

Can we at least seek recertification?

Let’s discuss.

Can we discipline Johnny for exceeding the frequency indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Johnny’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days. 29 CFR 825.308(c)(2)

Has Johnny’s frequency changed significantly?

In my opinion, no. And in one of those rare moments, the Department of Labor actually would agree with me. [Not that I take any pride in this.]

Keep in mind – the employee’s health care provider owns no crystal ball, so frequency and duration is a product of the HCP’s best estimate based on his/her medical judgment at that time. Although we’d be willing to beg HCPs to be more specific and accurate on frequency and duration, they often cannot, as the threshold for pain and the timing of a recovery differs for every individual. Really, when it comes down to it, can any medical professional predict precisely how many flare ups his/her patient will suffer from in one month? My friends, we’re talking best educated guess.

If you have been involved in a DOL FMLA investigation over the past couple of years, you also know quite well that the DOL takes the position that “one” absence over the frequency indicated in the medical certification does not constitute a significant enough change to trigger recertification. In taking this position, the DOL employs the reason I identified above. Bottom line, the agency argues that the certification is just an estimate, and one absence over frequency does not trigger the recert process.

So, does this mean an employee’s absences must be double the number indicated on the certification, as reflected in the migraine example given the regulations above? Not necessarily, but almost always, it means more than one over. In Johnny’s case, I would recertify when Johnny reaches five absences in a month, as this is arguably more of a significant departure from the number indicated on his certification.

But Is There a Pattern of Misuse That The Employer Can Go After Here?

Johnny isn’t out of the woods yet. Notably, he often calls off on Mondays and Fridays, claiming his back has flared up.

This is indeed suspicious. And if this hokey pattern continues over even a modest period of time (e.g., over a series of weeks or in back-to-back months), I think we arguably have the right to reach out the employee’s physician. Here, we follow the FMLA regulations (29 CFR 825.308) and ask Johnny’s physician to confirm for us whether this Monday/Friday pattern is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can get your own sample letters for these situations).

Eight times out of 10, Johnny’s doctor simply will rubber stamp Johnny’s pattern and confirm that these absences are related to his bad back. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Johnny’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Johnny’s Monday/Friday pattern somehow is not consistent with his need for FMLA leave.

In Johnny’s case, though, he knows we’re onto him and keeping tabs on him. And his doctor realizes it, too. Over time, these requests will result in more honest behavior from the employee — and physician.

Can We Discipline Johnny AFTER The Health Care Provider Responds? Here’s My Recommendation…

In these “20-percent” situations, can we discipline Johnny for any absences that exceed the frequency, as now confirmed by his physician?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by DOL to give guidance as to how employers might consider handling these situations. Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation? You issue discipline for any absences that exceed the frequency and duration.

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Johnny’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s now updated medical opinion. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification. In this second go around, the doctor now has confirmed that he stands by his position that we can expect Johnny to miss work three times per month at one day each because of his bad back. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for these excess absences. I recommend standing by this approach until the employee provides a contradictory medical opinion. See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.