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Can Employers Require Medical Documentation for Each FMLA Absence?

by | Aug 22, 2023 | Disability Discrimination, Employment Discrimination, Employment Law, Family Medical Leave Claims, Federal Law Update |

Navigating Disability Accommodation and Leave

In the vast labyrinth of employment law, there are moments when even the most seasoned employees find themselves lost, desperately searching for answers to questions that seem like they’ve been pulled from a legal version of “Jeopardy!” For instance, when Dr. Keri Turner, a former professor at Nicholls State University, found herself facing an uncertain future due to her health conditions, she took matters into her own hands. The battleground: the intersection of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

In Turner v. Board of Supervisors of the University of Louisiana System, No. 22-30615, 2023 WL 5092758, (5th Cir. Aug. 9, 2023), Dr. Turner, a tenured English professor at the University, faced the challenges of living with irritable bowel syndrome (IBS). As her condition deteriorated, she sought intermittent leave under the Family and Medical Leave Act (“FMLA”). The University granted her initial FMLA leave without requiring a doctor’s note for each absence, allowing her to manage her health while maintaining her teaching responsibilities.

The turning point came when Dr. Turner requested an accommodation under Americans with Disabilities Act (“ADA”) to teach her classes online due to her worsening symptoms. The University denied her request, stating that granting it would necessitate reassigning other professors. Subsequently, Turner faced excessive absenteeism, leading the University to require medical documentation for each sick day under its sick leave policy.

During the first few months of the fall 2019 semester, Turner accumulated over forty absences, which included canceled classes and office hours. These absences were not protected by the FMLA because Turner’s previous intermittent FMLA leave period had expired in March 2019. On October 17, 2019, Turner met with Defendant Steven Kenny, Vice President and Director of Human Resources at the University. Kenny informed her that—due to her excessive absenteeism—she would be required to produce doctor’s notes for each sick day under the University sick leave policy which allows that supervisors may choose to require medical documentation for each absence to grant paid sick leave.

On October 31, 2019, Turner met with University President Jay Clune. Clune informed her that the University was removing her from her teaching position and reassigning her to the writing lab due to the volume of absences she had accumulated since the beginning of the semester. At the meeting, Clune gave Turner the option of retiring or continuing to work in the writing lab for the remainder of her career. Turner submitted her letter of resignation soon after noting her intent to resign at the end of the academic year. In early November, Turner was again granted intermittent FMLA leave. But the University continued requiring her to submit a doctor’s note every time she took paid leave. Finally, on May 15, 2020, Turner resigned.

Can my boss require me to provide a doctor’s note for each FMLA absence?

Under the FMLA, eligible employees have the right to take up to 12 weeks of job-protected leave in a 12-month period due to their own serious health condition or the serious health condition of a family member. During FMLA leave, employers generally cannot interfere with, restrain, or deny the exercise of an employee’s FMLA rights. Once an employee is initially certified for intermittent FMLA leave, employers are not permitted to require employees to recertify their medical condition more often than once every 30 days. See 29 C.F.R. § 825.308(a). This means that the employer cannot ask for a doctor’s note more than once every 30 days, but it is not that simple.

Once FMLA leave is exhausted, employers can implement policies requiring medical documentation for sick leave. Moreover, employers can add additional requirements that employees must meet to get additional benefits. In this case, Dr. Turner sought paid leave under the Universities sick leave policy, which required a doctor’s note for each absence.

The United States Court of Appeals for the Fifth Circuit explained this point:

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. Turner points to no evidence to support her contention that the University’s requirement that she submit medical documentation to support each absence during her second FMLA leave period pertained to her unpaid FMLA leave rather than her paid sick leave.

Id. at *2.

However, it is important to note that employers must apply such policies consistently to avoid discrimination claims.

Best FMLA Attorney Blogs on Point:

Is it a reasonable accommodation under the ADA to get my employer to reassign other employees so that I can do one of their jobs?

Reasonable accommodation under the ADA is a flexible concept that requires employers to make modifications to enable qualified individuals with disabilities to perform essential job functions. In Dr. Turner’s situation, her request to teach online could be considered a reasonable accommodation if it wouldn’t impose an undue hardship on the University. However, the ADA does not require employers to reassign employees to vacant positions, create new positions, or fundamentally alter the nature of a job. Reassignment may be a reasonable accommodation only when it’s within the scope of an established policy or practice. The Fifth Circuit Court of Appeals rejected Dr. Turner’s claim holding:

Turner admitted that “in order to accommodate her request to teach online, three of her in-person sections would have to be swapped with three online sections which were already assigned to adjunct professors.” That admission is fatal to her claim given that an employer is not required to “relieve an employee of any essential functions of his or her job, modify those duties, reassign existing employees to perform those jobs, or hire new employees to do so.” Thompson v. Microsoft Corp., 2 F.4th 460, 467 (5th Cir. 2021) (emphasis added); see also Claiborne v. Recovery Sch. Dist., 690 F. App’x 249, 255 (5th Cir. 2017).

Id. at *3.

Best ADA Disability Accommodation Lawyer Blogs on Point:

What is the interactive process under the ADA?

The interactive process is a crucial component of the ADA. It involves a collaborative dialogue between employers and employees to identify effective and reasonable accommodations. Both parties are expected to engage in good faith discussions, share relevant information, and explore potential accommodations. If the initial requested accommodation is not feasible, the e/re must present any feasible alternatives. An employer’s failure to engage in the interactive process can lead to claims of ADA violations.

Unfortunately for Dr. Turner, her employment law attorney did not assert a claim for failure to engage in the interactive process. While Dr. Turner’s request to be given online courses only was not a reasonable accommodation for the reasons stated above, the University did not respond with any alternatives or otherwise engage in the interactive process. Given the fact pattern, we now know that a reasonable accommodation was available: reassignment to the writing lab.

Now, this might not have been Dr. Turner’s preferred accommodation, but under the ADA the employer can choose any reasonable accommodation that will accommodate the disability request.

Best Disability Accommodation Law Firm Blogs on Point:

Why should an employee get legal advice when dealing with disability and medical leave issues at work?

Disability and medical leave issues are intricate and legally nuanced. Employees facing these challenges may not fully understand their rights and the intricacies of the FMLA and ADA. Seeking legal advice ensures that employees are well-informed about their rights, potential accommodations, and available remedies. Spitz, The Employee’s Law Firm, stands as a beacon of legal expertise in such matters. With a No Fee Guarantee, employees can access guidance and representation without financial worry, ensuring their rights are protected. (Read: What is the Spitz No Fee Guarantee?).

Dr. Keri Turner’s case provides invaluable insights into the legal landscape surrounding FMLA, ADA accommodations, and medical leave rights. While the intricacies can be overwhelming, the importance of seeking legal counsel cannot be overstated. Remember, navigating workplace rights is a journey best embarked upon with the guidance of experienced legal professionals. So, you best option is to call the right attorney now.

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