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
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
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
“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.