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FMLA - One Way To Minimize Leave Abuse

Kentucky Employment Law Letter, Vol. 20, No. 4
January 2010

Employee abuse of sick leave is a common problem for many employers. The Family and Medical Leave Act (FMLA) requires you to provide unpaid sick leave to your employees and prohibits you from interfering with benefits provided by the Act. So how does that affect your ability to monitor an employee taking sick leave? A recent decision from the Sixth U.S. Circuit Court of Appeals (which covers Kentucky) reaffirmed your right to implement policies that help prevent employees from abusing sick leave. 


Butler County, located in southern Ohio, provided its employees paid sick leave. Because the FMLA only requires employers to provide unpaid sick leave, the county was providing greater benefits than those required under the statute. However, its notice requirements were more stringent than those imposed by the Act. The county required employees on paid leave to either (1) provide a doctor’s note stating when they would return to work or (2) call the county daily and provide an update on their condition. 

In 2002, the county began to take notice of Martin Allen — specifically, that his work performance was deteriorating. Allen, who was employed in the county’s department of environmental sciences, received three disciplinary reprimands in late 2002 and 2003. In 2004, he called out from work, claiming he was ill and needed to see a doctor. His supervisor reminded him about the county’s sick-leave policy and told him his doctor would have to complete an FMLA certification form. In addition, Allen would have to either call in daily to report on his status or provide a doctor’s note specifying when he could return to work. 

Allen missed work for more than a week and never provided the county with a doctor’s note stating his expected return date. When he failed to call in on the 10th day, the county terminated his employment for failing to comply with the daily call-in requirement. 

Court’s decision 

After Allen was discharged, he sued the county, alleging that it unlawfully interfered with his FMLA rights. The lower court ruled in his favor, and the county appealed. The Sixth Circuit ruled that the county didn’t violate Allen’s right to FMLA leave. 

The court started by reiterating that employers may adopt policies providing more generous leave than the FMLA requires. Therefore, when the county offered paid sick leave, it had the right to count the paid leave against the unpaid leave it was required to provide under the Act. 

The more important question was whether an employer that provides more generous leave may establish stricter requirements than those imposed by the FMLA. The court said that it could. Employers may impose requirements that interfere with an employee’s FMLA rights so long as the reason for doing so is legitimate and not related to the employee’s FMLA rights. The court gave examples of several requirements that have been found acceptable, including requiring employees to:

  • obtain medical certification from their doctors; 
  • provide a fitness-for-duty certification before returning to work; and 
  • call in on days when they will miss work.

In this case, the court found that the county’s call-in policy didn’t conflict with or diminish Allen’s FMLA protections. Allen v. Butler County Comm’rs, 331 Fed. Appx. 389 (6th Cir., 2009). 

Bottom line 

This is an important decision for employers seeking to prevent employees from abusing sick-leave policies. According to the court, you may impose strict requirements on employees taking sick leave provided your reasons for doing so are legitimate. In the Sixth Circuit, you can require employees to provide doctors’ notes and other forms of medical certification and to keep you informed about their plans for missing work. You also have the right to take disciplinary action against employees who violate those requirements so long as you don’t act with an improper motive. In short, this case shows that you can strictly monitor employees taking sick leave without violating the FMLA.

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2009 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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