Employer Can Request FMLA Recertification After Employee Extends Leave

​Tyson Foods Inc. did not violate the Family and Medical Leave Act (FMLA) when it required an employee—who had previously been certified for four to five days of consecutive leave at a time—to provide a doctor's recertification after he took 16 consecutive days off, the 8th U.S. Circuit Court of Appeals ruled.

The plaintiff, who had severe depression and anxiety, worked at Tyson from July 2016 to March 2018. He requested 10 days of FMLA leave in August 2017, which was certified by his psychiatrist. The psychiatrist stated that the plaintiff would suffer episodes of anxiety and depression, lasting four to five days each, once or twice every month or two for the next 12 months.

Tyson approved the plaintiff's leave request and approved intermittent FMLA leave under the psychiatrist's certification. Tyson's leave-of-absence policy required employees returning from FMLA or non-FMLA medical leave to provide a return-to-work certification from their health care provider that they are able to resume work with or without reasonable accommodations.

After the plaintiff returned to work from the 10 days of FMLA leave, he submitted a return-to-work certification form completed by his psychiatrist stating that he could return to work without any restrictions. Tyson approved intermittent leave for him from September to December 2017.

The plaintiff again requested FMLA leave from Dec. 8 to Dec. 18, 2017. The plaintiff timely submitted certification from his psychiatrist stating that he would need intermittent leave for episodes lasting four to five days per episode, once or twice every one to two months for the next year. The plaintiff's psychiatrist also provided another return-to-work certification. Tyson approved the leave. The plaintiff continued to use intermittent FMLA leave for a few days in December 2017, and in January and February 2018.

Then, between Feb. 12 and March 5, 2018, the plaintiff called Tyson's automated attendance hotline every morning to report that he was unable to work. On March 6, 2018, the plaintiff returned to Tyson after missing 16 consecutive workdays. He provided a psychiatrist's note to excuse the absences, but not a certification form, because his medication was being adjusted. The note failed to mention whether the plaintiff could return to work and if there were any work restrictions. The HR supervisor asked for an updated return-to-work certification.

Later that day, the plaintiff submitted a revised leave-of-absence application for the prior time off. Tyson demanded that he provide the required certification by March 21, 2018. The plaintiff called in sick to the attendance hotline from March 7 to March 14, 2018. These calls stopped on March 14 and the plaintiff's supervisors could not reach him after several attempts.

The plaintiff claimed that at some point, he notified someone at Tyson that he could not reach his psychiatrist, but he did not recall when, who he spoke to or what he specifically said. The plaintiff did not return an FMLA certification by March 21. Two days later, Tyson terminated his employment pursuant to its policies, which stated that three consecutive days absent without notice is considered job abandonment, and an employee can be terminated if the employee does not return to work at the end of an approved leave of absence.

The plaintiff sued Tyson, asserting multiple claims, including FMLA interference. Tyson moved for summary judgment, which the district court granted on all claims.

On appeal, the plaintiff claimed that he should not have had to recertify his leave after his 16-day absence. He claimed that the leave was not significantly longer than what had previously been certified, which allowed him to take leave twice per month in four- to five-day increments, allowing him up to 10 days per month.

Yet the 8th Circuit found that Tyson's recertification request was reasonable because there was a significant change in the circumstances. The psychiatrist's certification stated that leave would be taken in four- to five-day increments. The plaintiff's final leave was 16 consecutive days long—over three times the amount of time allotted for a single increment. Before that leave, the plaintiff's longest FMLA leave period was only 10 days. The 8th Circuit ruled that no reasonable jury could find that the plaintiff's 16-day absence was not a significant change in circumstances.

Whittington v. Tyson Foods Inc., 8th Cir., No. 20-3518 (Dec. 29, 2021).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.