DOL issues guidance on sick leave, drug testing under FMLA

    An employer may limit employees’ substitution of paid sick leave for unpaid medical leave by requiring employees to submit information beyond that required for the Family and Medical Leave Act (FMLA), said the U.S. Department of Labor (DOL) in a 2004 opinion letter.

    In another opinion letter also issued late last year, DOL said an employer may require an employee returning from FMLA leave to undergo drug testing within three days of returning to work.

    The two letters, issued in response to requests by particular employers, are the only FMLA guidance DOL has issued since May 2004, according to an account published by BNA Inc.

    DOL is careful to note that such opinions are based exclusively on the facts and circumstances described in the requests. While they are not precedent-setting, opinion letters are indicative of DOL’s enforcement position with respect to the precise issue raised. In February, in fact, the U.S. Supreme Court accepted a Fair Labor Standards Act case, IBP Inc. v. Barber Foods, U.S., No. 04-66, in which one issue on review will be the degree of deference courts should give to DOL opinion letters when they interpret statutes and regulations in litigation.

    Sick leave rules

    The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave each year for certain family and medical reasons. DOL regulations provide that an employer may not limit an employee’s substitution of accrued paid vacation or personal leave for FMLA leave but may limit substitution of paid sick leave to circumstances that meet the employer’s usual requirements for the use of sick leave, said a letter signed by Acting Wage and Hour Administrator Alfred B. Robinson.

    The employer in question has a paid sick leave plan that allows supervisors to require employees to submit “proof of illness” (a doctor’s note, for example) to receive paid sick leave, even if they have already submitted medical certifications that qualify them for FMLA leave. Some absences may qualify under the FMLA but not the employer’s sick pay plan; other absences may qualify under the sick pay plan and not the FMLA, the employer noted in its request for an opinion.

    The employer’s supervisors did not routinely request proof of illness but required it only when additional facts—a Monday and Friday absence pattern, for example—warranted it. Employees with multiple FMLA-qualifying absences were not singled out to submit proof of illness, the employer said.

    If the paid sick leave program “is uniformly applied to absences caused by illness regardless of whether the absences are FMLA-qualifying, and if employees may take unpaid FMLA leave or substitute accrued vacation or personal leave should they choose not to provide the additional proof of illness required to receive paid sick leave, then [the employer] would comply with the FMLA,” the letter concluded.

    On-the-job drug test

    On the drug-testing issue, DOL noted that the FMLA allows an employer to require a “fitness for duty test” for employees returning from FMLA leave pursuant to a uniformly applied policy. However, an employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for the leave, or if state or local law or the terms of a collective bargaining agreement establish certain return-to-work procedures.

    “Nothing in the FMLA prohibits an employer from requiring an employee to submit to drug testing once the employee has returned to work,” DOL concluded in the letter signed by an official in the department’s Office of Enforcement Policy. A practice of requiring drug testing within three days of returning to work and treating an employee’s refusal to submit to testing as insubordination do not violate the FMLA, the letter said.

    The department is slated to publish revised FMLA regulations in March, according to its most recent semiannual regulatory agenda.

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