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Recertification of Intermittent Leave Violates FMLA, New Jersey Appellate Division Holds

Authors: Mark Diana (Morristown), Evan J. Shenkman (Morristown)

Published Date: February 1, 2013

Burlington County jail employees reasonably suspected of abusing sick leave were required, pursuant to the collective bargaining agreement, to submit doctors’ notes regarding each exercise of intermittent family leave within seven days. Police Benevolent Assoc. Local No. 249 v. County of Burlington, 2013 WL 173793 (App. Div., Jan. 17, 2013). One employee on the “sick leave abuse list” took intermittent leave under the Family and Medical Leave Act (FMLA) to care for his son, and was disciplined after he failed to provide a doctor’s note. According to the Appellate Division, requiring recertification by a doctor for each exercise of intermittent leave interferes with the exercise of FMLA rights, particularly absent prior abuse of intermittent leave for the condition at issue (son-related). The Appellate Division differentiated the doctor’s note requirement in this matter from a lawful “call-in” requirement, indicating that “such a requirement is patently less onerous than requiring a doctor’s recertification for each use of [intermittent leave] that has already been approved on the basis of a doctor’s certification.” 

Note: This article was published in the February 2013 issue of the New Jersey eAuthority.

Mark Diana  (Morristown)

Mark Diana
Mark has a diverse litigation and counseling practice representing both private and public sector employers. For more than 25 years he has been defending employers in discrimination, harassment, wrongful termination, retaliation, breach of contract, wage and hour, and other employment-related cases before state and federal courts, administrative agencies and arbitration tribunals. Mark also provides counseling and compliance advice to employers with respect to the full spectrum of employment...

Evan J. Shenkman  (Morristown)

Evan J. Shenkman
Evan J. Shenkman is a member of Ogletree Deakins’ Knowledge Management Department, serving as the firm’s Senior Knowledge Management Counsel and Research Manager. In his role, Mr. Shenkman is responsible creating processes, practices, and software to allow firm attorneys to work smarter, faster, and more in sync; creating internal and client-facing collaborative tools; and managing the firm's team of Knowledge Management Counsel and the firm's Legal Researchers. He also manages...