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When Leave Abuse Is Suspected, Are There Risks In Asking For A Doctor’s Name?
By Darlene Clabault

Shannon requested and began taking approved, unforeseeable, intermittent FMLA leave for her migraines. She estimated that the recovery time for each migraine could be up to three days.

Shannon’s employer never denied her leave requests; in fact, Shannon was encouraged to take FMLA leave whenever she needed it.

A suspicious pattern
Over the span of about six months, however, a suspicious leave pattern emerged. On Friday, Shannon would request leave for the following Monday. It seemed that she was able to predict that she would have a migraine over the weekend and would need Monday off.

Sometimes, her reason for leave would not qualify for FMLA, such as home construction or putting down her cat.

Questions from the employer
Given this pattern of what looked like Shannon extending weekends, the employer began to question the accuracy and honesty of her FMLA leave designations.

When asked about her absence regarding her cat, Shannon indicated that the stress of the situation triggered a migraine.


Shannon pressed her luck, however, when she requested leave that included June 29, to extend the long Independence Day weekend.

This was particularly suspicious, as the employer knew that Shannon traditionally worked at her brother’s fireworks stand during that time.

Medical appointment?
When asked if the time off on June 29 was for a medical appointment related to her condition, Shannon said it was. She was then asked for the identity and contact information of the doctor she would be seeing.

After repeated requests, Shannon did not provide the information by her employer’s deadline. She was terminated.

Did the employer go too far?
Shannon sued, arguing that the request for the doctor’s identity and contact information went too far. She said it was not a legitimate inquiry under the FMLA recertification process, which employers may use if they question an employee’s continued need for intermittent FMLA leave.

There are limits on recertification requests; an employer may not, for example, ask for a doctor’s note each time the employee takes leave. In this case, however, the employer argued the recertification procedures were irrelevant.

The employer was not disputing Shannon’s entitlement to intermittent medical leave. Rather, her honesty in designating FMLA leave for approved purposes was questioned. The employer was seeking verification of her claimed FMLA use.

A win for the employer
In this case, the court sided with the employer, indicating that Shannon did not demonstrate that the employer questioned her FMLA leave entitlement.

To the contrary, the employer never denied the leave and even encouraged it.

The court concluded that the request for the doctor’s name and contact information did not violate the recertification requirements.

Employers are allowed to ask for recertification if the employer learns something that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

This employer’s request was based upon a good faith belief of potential leave abuse, to verify the legitimacy of Shannon’s FMLA designation on June 29.

Points to remember
While the employer won its case, it is also important to remember that if the employee had provided the information, there are limits on the employer’s communication with the doctor.

The employer might have asked about the existence of the questionable appointment only after having documented evidence of suspicious leave patterns.

Asking for doctor’s notes for each instance of intermittent leave is risky, as the notes are seen as recertifications, which must comply with the recertification rules.

While additional information may be requested when abuse is suspected, it’s also important to keep those points in mind.

Court Case: Dapkus v. Arthur J. Gallagher Service Company, LLC; U.S. District Court of Connecticut, No. 3:19-cv-01583, April 14, 2022


 
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