IS “PROOF OF NEED” REQUIRED FOR INTERMITTENT FMLA LEAVE DAYS?
While it is hard to ever say “never” to a legal question, at least one federal circuit court believes that an employee may not be required to show s/he had an actual need for the leave every time the employee took intermittent leave to care for a sick parent. (Check out this piece from the law firm of JacksonLewis.)
OPM generally agrees with that, but its regulation on the matter leaves wiggle room that some agencies have used to demand frequent recertification or proof of need. See 5 CFR 630.1208(j). Moreover, if a union is going into term negotiations it should remember that OPM regulations provide the agency discretion to waive some certifications, which generally makes that decision negotiable. See 5 CFR 630.1208(a) This new court case should help convince agencies to avoid harassing employees with “proof of need” demands.
Although agencies might think they have little financial liability if they do improperly demand recertification of intermittent leave requests, they should not be too confident. If an employee takes leave (sick or annual) to get the unnecessary recertification, the union can request reinstatement of that leave in any grievance challenging the recertification demand. An arbitrator’s order to reimburse the employee’s leave, which might cost the agency only a few hundred dollars, opens the door to attorney fees that can easily mean a bill of more than $10,000.