Does an employee’s intermittent FMLA leave trump a healthcare facility’s snow emergency policy? If yes, can we ask for verification of that absence since we require confirmation from everyone else for absence during snow emergencies.
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Answer from the experts at HR.BLR.com:
This can be a tricky area for employers because, generally, certified FMLA leave trumps all.
For this reason, if the leave “fits” within any parameters set forth in the medical certification, I would be hesitant to require any further certification, regardless of your policy regarding attendance and snow days.
When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. So, for example, an employer may require employees to call a designated number or a specific individual to request leave. This rule applies to notice, but not to certification of the need for leave.
There are exceptions to the certification rule that may allow the employer to ask for recertification of the need for FMLA leave. For example, if the employee’s absence during a snow emergency qualifies as either of the following, you may be able to request recertification of the need for FMLA leave:
(1) Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
(2) You receive information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.
However, it is likely that even with recertification, the employee’s healthcare provider is likely to support his or her need for intermittent leave.