Case — Repeated requests for doctors’ notes went too far

Posted November 23, 2022

About a year after being hired, Karen asked if she could take time off to care for her husband, who was scheduled to undergo a knee replacement. She was asked to provide a certification and she did. The certification indicated that Karen would need continuous leave for a few weeks, then intermittent time off for a couple months after that.

Overtime and FMLA

The company had an overtime (OT) policy where employees could volunteer, but if not enough volunteered, the overtime became mandatory. Employees could refuse the mandatory OT for medical appointment that were verified by a doctor’s note. The company did not, however, have any policies requiring a doctor’s note for each instance of FMLA leave.

As it turned out, Karen would have been scheduled to work mandatory OT on October 24, November 4, and November 22 – days she also needed FMLA leave. She was asked to provide a doctor’s noted for those days, just to provide proof of attendance to the appointments. The company did not require her to work those days, but repeatedly ask her to provide the doctor’s notes. Karen indicated that she had already submitted the proper FMLA certification and was not going to provide proof of attendance at medical appointments on the days she took intermittent leave.

Doctor’s notes

At one point, Karen was told that she needed to submit her doctor’s notes by the next night. She was even called after hours to get the notes. Soon, she was advised that if she had one more unexcused absence, she would be fired, and that not providing the medical documentation would jeopardize her job. Karen did not show up for work on November 15, which was not FMLA-related. On November 25, she was involved in a meeting on this and again, was reminded about the doctor’s notes and, again, she refused to provide them.

In early December, Karen resigned stating that the stress of the job was too much, including being continuously asked for the notes for FMLA leave and the related termination threats, and that she was constructively discharged. She sued, arguing that the employer violated the FMLA by requesting the doctor’s notes in addition to the FMLA certification.

And the court says…

The court found in favor of Karen, noting that on at least 10 separate occasions, the employer repeatedly demanded, during and after her work hours, that she provide the notes, and also threatened to discipline her for not doing so, even though she had already provided an FMLA certification for the time off. Thomas v. City of Green Bay, Eastern District of WI, No. 21-c-979, 11/14/22

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.