Throughout the Summer of 2019, depot management in the Department of Buses began posting a “policy” (pictured below) at various depot locations outlining a new requirement for submitting a doctor’s note upon returning from each instance of FMLA.
The policy, written on a New York City Transit letterhead requires that employees who utilize intermittent leave under FMLA for themselves must provide a completed sick leave application including completion of the “Doctor’s Certification” portion by a physician if the absence exceeded 2 days for employees in the 30% sick category or, 3 days for employees in the 70% sick category. Furthermore, the policy requires that employees who use intermittent leave under FMLA to care for a family member must bring in written evidence (i.e. a doctor’s note) when, “taking FMLA intermittent leave of ANY duration”. The policy then concedes with the statement, “Management has the right to investigate and take appropriate action”.
The matter in question is whether management truly has the right to take this action? The answer, in my opinion is — No.
In 2014, “Oak Harbor Freight Lines, Inc. v. Antti”, a case ruled in a 9th circuit U.S. District court supports the theory that requiring a doctor’s note in connection with an FMLA absence is the equivalent of requiring medical re-certification for each leave instance which violates Section 825.307(a) of the Family and Medical Leave Act of 1993 which reads:
“If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider.”
This ruling has been found to successfully have persuasive authority in several U.S. District courts including, Iowa and New Jersey. In 2013, although unpublished, a similar ruling in “Police Benevolent Association Local No. 249 v. County of Burlington” was rendered in the New Jersey Superior court, where the court ruled that:
“Requiring recertification by a doctor for each exercise of Intermittent family leave interferes with the exercise of FMLA rights”.
As part of the initial FMLA application, A New York City Transit memorandum titled, “Family and Medical Leave Act Implementation Guidelines” requires that when an employee seeks approval for an FMLA qualifying illness for themselves or that of a family member, a “Medical Certification” be submitted. This “Medical Certification” which includes, the name, address and other identifying information of the healthcare provider, the approximate date the serious health condition began and the probable duration serves as your “doctor’s note” for the duration of the FMLA leave.
The memorandum issued by NYCT further indicates that, “paid leave will be substituted for unpaid FMLA leave to the extent allowed by law and applicable collective bargaining agreements.” rendering the notices posted around bus depots violative of the contract, NYCT policy and Federal Law. Section 825.207 of the Family and Medical Leave Act of 1993 requires that substitution of paid leave be in accordance with the employer’s normal paid leave policy. Section 825.700 of that same act then requires that a company policy not diminish the rights afforded to an employee under the FMLA law. It has been a long standing practice for NYCT to utilize personal time (AVA, VAD, OTO and PLD) to provide paid leave when an employee uses intermittent FMLA leave to care for a family member. Ordinarily, an employee is not required to furnish any documentation when on leave utilizing personal time therefore, requiring that an employee submit documentation in conjunction with the medical certification already on file is a clear depiction of the MTA deploying tactics in attempt to interfere, restrain and deny the exercise of one’s rights under the Family and Medical Leave Act of 1993.
In conclusion, the MTA’s “policy” to require a doctors note in accordance to the sick rules in the contract, which call for a doctors note for paid or unpaid leave when an absence exceeds 2 days for an employee in the 30% sick category or 3 days for an employee in the 70% category is violative of Federal Law. The same is true for the requirement of documentation upon returning from FMLA leave to care for a qualifying family member. The courts have ruled that, once a medical certification is approved and on file for a qualifying illness, the employer can not request more information from the healthcare provider regarding the FMLA qualifying illness unless a re-certification is required. The measures deployed by the MTA are a clear attempt to interfere, restrain and deny the rights of those whom wish to exercise their rights under FMLA.
PROGRESSIVE ACTION MAGAZINE 