Employment-District Court Holds That Requiring An Employee to Produce A Doctor’s Note For Medical Absences On Three Day’s Notice Violates FMLA

In Smith v. CallTech Communications, LLC, No. 2:07-cv-144 (S.D. Ohio 2009), the plaintiff, Stephanie Smith, had been employed by the defendant, CallTech Communications, LLC (“CallTech”). Both before and throughout her employment at CallTech, the plaintiff was diagnosed as suffering from chronic major depressive disorder and dysthymic disorder. During her employment at CallTech, the plaintiff, on numerous occasions, showed up tardy, left work before her shift was over, and missed entire shifts. The ostensible reason for this behavior was her medical condition. At one point, the plaintiff requested leave under the Family and Medical Leave Act (the “FMLA”), and CallTech granted this request, designating the plaintiff as eligible for intermittent leave under the FMLA for her medical problems. CallTech had a policy (the “Attendance Policy”) under which an employee, who qualifies for intermittent FMLA leave, must provide a physician’s note verifying that every instance of absence, tardiness, or early departure is directly related to the employee’s medical condition.

Despite being approved for intermittent FMLA leave, the plaintiff’s continued tardiness, sick days and early departures produced poor results on the system CallTech was using to track and evaluate employee behavior. Eventually, the plaintiff was told by CallTech that she would be terminated unless, within 3 days, she provided it with a doctor’s note indicating that at least some of her absences were the result of her medical condition. Thinking that she could not visit the doctor soon enough to meet this deadline, the plaintiff stopped reporting to work altogether. The Court thus faced the question as to whether CallTech’s Attendance Policy could be applied to require the employee to furnish the doctor’s note on only 3 day’s notice without violating the FMLA.

In answering this question, the Court explained that neither the statute nor the underlying regulations dealt with a request by the employer for a doctor’s note made after intermittent FMLA has been approved. However, under §§825.305 and 825.08 of the FMLA regulations, an employer may request that an employee, who asks for FMLA leave, furnish it with a certification (arguably different than just a note) from a health care provider. This request must provide the affected employee with the time frame to respond, and this time frame cannot be less than 15 days from the date of the request. Section 2913(a) of the FMLA requires an employee to provide any required medical documentation to the employer in a timely manner. Similarly, when FMLA leave is unforeseeable, under §825.303 of the FMLA regulations, the employee will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation. Based on the statute and the foregoing regulations, CallTech had to give the plaintiff a reasonable amount of time to provide the doctor’s note. What is reasonable depends on the exigencies of the situation. Here, given the coordinated effort necessary to schedule a doctor’s appointment and/or to obtain a note from the doctor, and from the totality of the circumstances indicated in the record for the case, the Court held that that allowing the plaintiff only three days to obtain the doctor’s note was unreasonable as a matter of law and thus violated the FMLA.