Intermittent FMLA Absences Not Subject to Proof of Need

March 20, 2017

The Eleventh Circuit Court of Appeals has issued a decision that provides a cautionary tale to employers about seeking documentation from an employee on intermittent Family and Medical Leave Act (FMLA) leave. The Court held that an employer’s request for “proof of need” related to an employee’s intermittent absence was evidence of interference with the employee’s FMLA rights and thus precluded summary judgment for the employer.

Employee first applied for intermittent FMLA leave to care for her elderly parents in June 2013, and she took approved FMLA leave a number of times from June 2103 through February 2014. On March 20, 2014, Employee learned that her mother was seriously ill and immediately submitted a request for FMLA leave. Employee missed scheduled workdays in late March and early April to care for her mother. After Employee returned to work, Employer sent her a memo requesting an updated certification and other documentation “to support the need for intermittent use of FMLA leave when a 30 day advance notice is not provided.” When Employee questioned the request for additional documentation, Employer stated that they needed “proof of need” such as documents from the hospital on the dates she was out or receipts for lodging, food, or gas from the town where her parents lived. Employer also told Employee that her continued unpaid time away from work was compromising the quality of care to their patients. After Employee provided an updated medical certification and the requested “proof of need” documents to Employer, her absences were approved as FMLA leave. During the following month, Employer raised several concerns with Employee’s job performance and ultimately terminated her employment based upon those performance concerns.

Employee filed a lawsuit against Employer alleging interference and retaliation claims under the FMLA. The Court ruled that Employer’s action had potentially discouraged Employee from using FMLA leave. In reaching this conclusion, the Court relied on Employer’s statement about Employee’s absences compromising the quality of care and the request for “proof of need” documents. With regard to the latter, the Court stated that since the type of documentation requested by Employer was unnecessary to determine whether Employee actually needed leave to care for her parents, that request provided evidence that Employer was trying to make it difficult for Employee to use FMLA leave.

Since the advent of the FMLA in 1993, employers have been challenged by intermittent leave more than any other aspect of the law. In an effort to curtail perceived abuse of intermittent leave, many employers are tempted to request that employees provide doctor’s notes or other documentation to justify each intermittent FMLA absence. However, in addition to the cautionary tale of this case, employers must remember that the FMLA regulations specifically prohibit an employer from obtaining additional documentation from the health care provider once a complete and sufficient medical certification has been provided. In light of this, employers who insist on requiring additional documentation to support each intermittent FMLA absence do so at great risk.