The Human Resources FMLA (and other questionable absences) Cheat Sheet for post-Super Bowl Monday

In between placing prop bets on the Super Bowl  LIII Halftime Show (courtesy of SportsInteraction) — for entertainment purposes only, of course — I read on the AP News wire, “Super Bowl Fever May Sideline Record 17.2 Million Workers on Monday.”

Are you ready for this?

Don’t worry. I’ve got your back.

Fortunately (for me), I’ve written about this before.

So, I’m not going to reinvent the wheel entirely. Let’s see if what I said back in 2016 still holds up.

1. If an employee neither shows up for work nor checks in with you, then refer to your employee handbook — I’m thinking your employee call-out rules; maybe a no-call/no show policy — and apply them.
2. Make sure that employees who do call out sick are doing so in accordance with applicable policies and procedures.
3. Should you require a doctor’s note? Well, the better question may be, can you require a doctor’s note? Eric, are you saying that we just have to take their word on it? Well, said the lawyer, that depends. If your business operates where there is a paid sick leave law, before you insist upon a note, check the law. Or call your lawyer. In Philadelphia, for example, the local paid sick leave law only permits employers to request documentation for absences of more than two days.

Solid (non-legal) advice, Meyer!

Where I practice law, add New Jersey to the list of states/cities of paid sick leave laws that restrict when you can ask about single-day sick-related absences.

Now, I wonder how many will seek cover under the Family and Medical Leave Act.

Better yet, how prepared is your business for when those FMLA requests come pouring in?

Once again, no wheel reinventing needed. Jeff Nowak has written about this on his FMLA Insights Blog.

Among other things, Jeff offers a few tips on FMLA recertification:

If this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option.  Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays?  Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired?  If your answer is “yes” to any of these questions, seek recertification immediately.  Moreover, if you are concerned about Monday/Friday absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

I’m going to expound ***Googles “expound”*** yes, expound on that:

• Recertification involves providing notice to the employee. Making an end run around the employee to the physician can lead to problems. And lawsuits.
• Any recertification requested by the employer is at the employee’s expense unless the employer provides otherwise. No second or third opinion on recertification may be required.
• A pattern of absences means, just that, a pattern. If this is the first time that the employee has taken intermittent FMLA on a Monday, that’s not a pattern. Consequently, that’s not your cue to request recertification — unless you like FMLA interference claims.
• Ditto for a slight deviation with the absences contemplated under the FMLA certification that you have on file. The regulations provide an example of what may be a significant change in circumstances (involving an employee certified for 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.) So, if your employee has a similar certification for migraines or fibromyalgia or stress or something else that doesn’t appear on an MRI — am I cynical, or what? — resist the urge to require recertification for a third absence.
• If recertification is not a viable option, it may be unwise to request a doctor’s note.

I hope that you enjoy the Super Bowl! Let’s go Rams!

I cheer for any team playing the Patriots. Like this guy from Pittsburgh, apparently.

Well, any team except the Cowboys. However, that hasn’t been a problem for the past 22 years, and won’t be an issue for the foreseeable future.