Legal Question in Medical Leave in Texas
Recertification Procedures
The employer has a no fault attendance policy where points are assessed for each absence. A employee has been approved for intermittent FMLA for a 6 month period.The frequency approved is for 3X a month. In the third month the employee uses 4 days and is charged a point for the absence, even though he identified the absence as a FMLA illness. He is not given the paperwork and requested to recertify but instead is told that he can bring in a note to excuse the absence under the attendance policy. I read the regulations as stating that the employer may request recertification if the conditions change ''significantly'' but the burden is placed on the employer to request any new certification. The employer in effect is denying his FMLA instead of exercising their right to request recertification. Is that a valid argument? Can the employer ignore the FMLA request during the already approved time period? Is telling the employee to go to the Doctor the same as requesting recertification?
1 Answer from Attorneys
Re: Recertification Procedures
The interaction between no-fault attendance policies and the FMLA is one of the more troubling areas in employment law. Adding to the complication is that many courts have rejected the regulations implementing the law, leaving both employers and employees in a state of uncertainty as to what is required and what is not.
In the case presented, it would seem that so long as the employer is not removing the employee from his or her position or taking some other action that interferes with the employee's right to take leave time, there is no claim for violation of the FMLA. If you have other questions, or wish to discuss this in more detail, please do not hesitate to contact me at [email protected].
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