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What Happens When Employees Exceed The Length of Their FMLA Medical Certification?

fmla

Imagine you are granted absences three times a month for Family and Medical Leave Act (“FMLA”) certification for a disease you suffer from. However, you decide you need more time to heal and decide to take another week off. What could your employer do? This is a common scenario many employers face, particularly with employees who take intermittent leave. In instances of intermittent leave, an employee is granted absences for a given number of times in a fixed period (say, five times for one day per month). However, the employee takes advantage of their leave and takes off more times or for more days than they are allowed.

Recertification of Absences               

Generally, an employer can only ask for a recertification of an FMLA absence every thirty days. The one exception to this general rule is where the circumstances encompassed by the prior certification have changed significantly. This often occurs where the underlying illness worsens in severity or complications happen. For example, if someone receives FMLA leave for suffering from frequent migraines where they can take one day off a month but then his migraines increase in frequency to three or four times a month, then this could be considered a significant change in circumstances.

The employer may, however, ask the employee’s health care provider if this the absences are consistent with the changes in the employee’s injury/disease. In these instances, an employee should ask a lawyer to draft a letter explaining the changes and how the increased amount of leave is consistent with your circumstances.

What if Your Doctor Says Your Leave is Not Consistent With Your Injury/Disease?               

A majority of the time, an employee’s physician will agree that their additional absences are consistent with the injury/disease. However, at times, the physician may suggest the employee’s absences are not consistent with his request for FMLA leave. In these instances, an employer may choose to pursue disciplinary action against the employee. If you are an employee facing this situation, you may try to get a letter from a different physician that suggests the additional leave is necessary.

What Happens If You are Fired for Exceeding Your Certification?

If your employer fires you for exceeding your certification, you may have a viable FMLA claim against them. The viability of an FMLA claim hinges on a few factors: first, whether the employer had the right to seek recertification, as discussed above; second, whether the employer had clarified its information with the employee’s doctor; and third, whether the employer contacted the employee’s health care provider directly without the employee’s permission and whether the employer had the right to do so. If a court finds the employer did not follow the appropriate steps, they may rule in favor of the employee and order damages from the employer.

Contact Us Today for Assistance

It can be difficult to understand what leave you are entitled to and what could happen if you exceed the time and duration of your FMLA medical certification. The experienced Clearwater employment law attorneys at Dilla Employment Law, P.A. can help you understand the limitations of FMLA certification and what could happen if you extend your certification. Contact us today for a free consultation.

Resource:

dol.gov/whd/fmla/

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