No recertification no FMLA protections

Weston worked for the company since July 2016. He suffered from depression and anxiety and took 10 days of FMLA leave for it. He also needed intermittent leave going forward, lasting four to five days per episode, once or twice every one-to-two months.

Things were going fine until the period between February 12 and March 5, 2018, when Weston called in every morning. When he returned, he met with HR and provided a doctor’s note as his medications were being adjusted. This long, continual leave was different from what the certification indicated regarding intermittent leave.

Weston asked that this last leave be extended until March 9 and was told to provide a recertification, given the seemingly changed circumstances. He subsequently missed work from March 7 to March 14 but stopped calling after March 14. Under the company policy, three consecutive days absent without notifying the Company was considered job abandonment. Weston also failed to provide the requested recertification by the deadline of March 21.

Given all this, Weston was terminated on March 23. The employer told Weston that the termination was due to his failure to both return from leave when expected and to communicate with the company regarding his absence.

Weston sued, arguing that the company interfered with his FMLA rights by requiring recertification in March 2018.

The court indicated that, even though the March 2018 recertification request came before the minimum duration of Weston’s condition expired and before the six-month minimum for recertification, there was an apparent significant change in circumstances with Weston’s absences. Therefore, the employer had the right to request the recertification.

The employer supported its argument by pointing out that Weston’s 16-day leave was very different than the intermittent four-to-five-day increments indicated in the certification.

Weston tried to counter that the 16-day leave was not significant, because this was less than twice the maximum amount of leave anticipated in a one-month period.

The court didn’t buy Weston’s argument, and ruled in favor of the employer.

Friends, employers have the right to request recertification when called for, and a significant change in circumstances is one of those times when it is called for. In this case, the employee failed to provide the recertification and lost his FMLA protections. Therefore, neither recertification request nor the termination violated the FMLA.

Whittington v. Tyson Foods, Inc, 8th Circuit Court of Appeals, No. 20-3518, December 29, 2021

Watson v. Drexel University, 3rd Circuit Court of Appeals, No. 20-3001, September 27, 2021

Key to remember:  Employees risk their FMLA protections if they fail to provide a requested recertification supporting the need for an expansion of their FMLA leave.