A Publication of WTVP

You recently placed “Sluggo” on a corrective action plan due to poor attendance, tardiness and substandard performance. The action plan requires perfect attendance, prohibits Sluggo from coming in late or leaving early and mandates achievement of objective performance goals. The next day, Sluggo submits a doctor’s note indicating that he suffers from chronic migraine headaches that will result in intermittent periods of incapacity requiring full or partial day absences. The timing of his leave request breeds skepticism among the management team which wants to hold him to the corrective action plan. How can you enforce your legitimate attendance and performance expectations for Sluggo without violating the Family and Medical Leave Act (FMLA)?


The FMLA requires covered employers to provide eligible employees with up to twelve work weeks of job-protected leave each year for, among other reasons, serious health conditions that keep employees from performing their jobs. The FMLA applies to any absence due to chronic health conditions, such as migraines. When medically necessary, FMLA leave may be taken on an “intermittent” basis in full or partial day increments.

The FMLA and related regulations present obstacles to your attempt to manage Sluggo’s potential leave abuse. For example, once certified, you cannot consider absences for migraines as violations of the corrective action plan. You also cannot directly contact Sluggo’s physician to discuss the nature of his condition, the extent of his restrictions or whether he even consulted the doctor. Furthermore, you cannot require Sluggo to provide a doctor’s note to justify each absence purportedly due to a migraine. Moreover, once you accept a medical certification from Sluggo, you cannot obtain a second opinion on recertifications. The regulations, however, do offer several avenues for potential relief, provided your company maintains appropriate policies and procedures.

Examine Your Policies and Procedures

In order to maximize your right to discipline Sluggo, your company should establish the following:

Determine Available Leave

During the prior twelve months, Sluggo took ten weeks of FMLA leave to care for his ailing mother at her winter home in Florida. You may include Christmas and New Year’s holidays as part of the ten-week period. Sluggo also took five weeks off for a workplace injury and worked five weeks of light duty. However, the company never designated the workers’ compensation absence or light-duty service as FMLA leave. If the time spent on workers’ compensation and light-duty is not counted as FMLA leave, Sluggo is entitled to two work weeks of FMLA leave.

Consider Retroactively Designating Workers’ Compensation Leave as FMLA

The DOL regulations prohibit retroactive designation of FMLA leave in most situations. However, given the Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., which invalidated
a related regulation, it is questionable whether the ban on retroactive designation remains valid. This is especially true for a case like Sluggo’s, where the undesignated leave is due to the employee’s own serious health condition. In such a case, the employee suffers no harm from the retroactive designation because he could not have acted differently had he received immediate designation. In the event you retroactively designate Sluggo’s workers’ compensation leave and light-duty assignment as FMLA leave, the company can terminate Sluggo pursuant to the corrective action plan for any absence or tardiness.

Medical Certification

In the event that you take the conservative approach and do not retroactively designate FMLA leave, you should require Sluggo to provide medical certification of his health condition within fifteen days. If he fails to provide timely certification, you can fire him for any absence or tardiness occurring during or subsequently after the fifteen-day period. You can only take advantage of Sluggo’s documentation failure if you are in full compliance with the FMLA’s three-notice requirements: notice on bulletin boards, notice in the policy manual and notice of expectations and obligations given to Sluggo when he requested leave. This third notice must specifically advise him that his failure to submit his medical certification in a timely manner will subject him to discipline under company policy and the corrective action plan. If Sluggo fails to provide a timely certification, you can terminate his employment for any absence or tardiness.

Consider Sending Sluggo for a Second Medical Opinion

Assuming a timely certification establishes that Sluggo suffers from a chronic serious health condition, consider sending him for a second opinion. If the opinions conflict, you may obtain a third and binding opinion. Alternatively, you can rely on the second medical opinion and litigate the issue if challenged in court. Unfortunately, many chronic conditions are difficult to dispute with objective medical facts, and the second opinion approach often proves expensive and fruitless. It may be your only chance, however, for an independent medical opinion. Although you are entitled to periodic recertification from Sluggo’s healthcare provider, you are not entitled to second opinions on recertifications.

Consider Surveillance

Given the shortcomings of the second opinion procedure, many private sector employers are rechanneling their resources to employee surveillance. Few treatment protocols involve shopping at the mall, mowing the lawn or visiting the local tavern. If you can document that Sluggo was engaging in activities inconsistent with his claims of incapacity, you can fire him. Likewise, if you establish that he violated your moonlighting policy, you can legitimately
terminate his employment.

Carefully Track Leave Use

Provided the company’s payroll system tracks employee leave and absences in increments of an hour, the company can calculate intermittent FMLA leave on an hourly basis. Each time Sluggo is as little as five minutes late or leaves just fifteen minutes early due to a migraine, the company can subtract one hour from Sluggo’s remaining leave entitlement. Once Sluggo exhausts his remaining leave, you can apply the corrective action plan.

Consider Temporarily Transferring Sluggo

Assuming Sluggo’s absences disrupt the company’s operations, you should consider temporarily transferring him to an alternate position with equivalent pay and benefits. Although the regulations
technically only allow for temporary transfers if leave is for planned medical treatments, the risk of exposure to substantial damages is virtually non-existent. Unlike the federal discrimination
statutes that allow an employee to recover compensatory damages for pain and suffering as well as punitive damages, the FMLA limits an employee’s recovery to damages based on out-of-pocket losses. If Sluggo receives the same pay and benefits to which he was entitled in his regular position, he suffers no out-of-pocket loss.

Enforce the Performance-Based Requirements of the Corrective Action Plan

The FMLA prohibits firing an employee for taking FMLA leave or exercising rights under the Act. If an employee would have been fired regardless of taking FMLA leave, he loses the protection of the Act. Because Sluggo’s performance problems are well documented and preceded his recent request for leave, the company can fire him pursuant to the corrective action plan for any documented performance failure not caused by a protected absence. IBI