Doctor's Notes and Intermittent FMLA Absence

Not more than once every 30 days, that is, unless one of these exceptions applies.

Dr. Keri Turner accumulated over forty absences, which included canceled classes and office hours, during the first few months of a Fall semester. Although she was diagnosed with irritable bowel syndrome (IBS), the FMLA did not protect these absences because Turner's previous intermittent FMLA leave from the year earlier had expired.

In response to these absences, human resources spoke with Turner and informed her that, due to her excessive absenteeism, the University would require her to produce doctor's notes for each sick day under its sick leave policy. The University's sick leave policy allows supervisors to require medical documentation for each absence to grant paid sick leave.

The following month, Turner applied for and received intermittent FMLA leave prospectively. However, the University continued requiring her to submit a doctor's note every time she took leave.

In a decision from 2014, the court granted the plaintiff summary judgment on his FMLA interference claim because the company's policy of requesting a medical note for each intermittent FMLA absence violated the 30-day rule.

But did the University violate the FMLA's recertification rules, too? Apparently not, ruled the Fifth Circuit (Miss., La., and Tex.) in Turner v. Board of Supervisors of the University of Louisiana System:

But, as the district court correctly found, the University did not require doctor's notes for Turner's FMLA leave. It required such notes for the University's separate, paid sick leave policy. The University afforded its employees paid sick leave, which it allowed to run concurrently with unpaid FMLA leave. The University followed this policy during Turner's first FMLA leave period, which is why Turner continued to be paid during that period without interruption. But University policy also allowed supervisors to require doctor's notes for each absence to receive paid sick leave when there was excessive absenteeism. During Turner's second FMLA leave period, the University freely admits that it continued requiring Turner to submit documentation for each absence to allow her to continue receiving paid sick leave pursuant to the University's sick leave policy

Basically, the University did not just roll out this policy to deter employees, like the plaintiff, from taking FMLA leave. Instead, it was the University's well-established way of determining abuse of its paid sick leave policy. Indeed, the FMLA allows employers to require their employees "to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances."

This case was dismissed, but remains a cautionary tale as your results may vary greatly depending on facts and circumstances.