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legaleagle, Lawyer
Category: Employment Law
Satisfied Customers: 13441
Experience:  Practicing Attorney for 10 years
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I was just asked by my employer to get a recertification on

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I was just asked by my employer to get a recertification on my FLMA because I went over the allowed days per month for 3 months in a row. On the recertification recheck the doctor found that the days per month to sufficiently cover my needs did not need to be increased. However, it was discovered that I have high blood pressure and needed to get on medication for it immediately. My initial FMLA was approved for recurring Staph infections that often require surgical draining (MRSA). Word got out at work about me having MRSA and it resulted in me being called in to our onsite health services office to discuss it with the staff nurse. She told me that I did not need to be at work when my affected areas were draining. This was one of the main reasons that I went over my days allowed per month that were approved by FMLA. My concern, is my employer going back and recoding days that were previously coded by by supervisor as approved FLMA to unapproved and firing me.

Thank you for contacting with your question. I will provide legal information related to your question.

If your employer's nurse required you to take off days related to your FMLA condition even though your doctor did not certify that you needed those extra days, the employer must allow you to have them coded as FMLA since they required you to take them off. If you employer does not code them as FMLA you have a valid complaint to file with the Dept. of Labor

Customer: replied 3 years ago.

I do not know if the nurse documented our conversation or communicated to any other staff her recommendation for me to leave the days my affected areas were draining. What if it comes down to hearsay?

The DOL will believe you because the employer did code it as FMLA at first, they can not go back and undo that unless they can prove you were not out due to the condition. If you state that you were draining on those days the employer has no way to prove you are not be truthful. In these cases the DOL is pro employee.
Customer: replied 3 years ago.

Is it legal for them to go back and recode previously approved FMLA as unapproved? Do you think I have to be concerned for my job?


It is not "illegal" in the since that they would be arrested but they could be fined or sanctioned by the DOL if they changed the coding when there was no reason for them to do so other that apparent retaliation. I do not think you have to be concerned for your job but since your doctor would not provide a certification for more days per month for the first condition you should consult the employer's nurse again and have her put in writing that the employer requires you to take FMLA days when you are draining even though your doctor does not think you have to be away from work.
Customer: replied 3 years ago.

Them requesting a recertification coupled with the fact that my doctor sees my former approved FMLA being sufficient, with the only noted change in the paperwork being a new diagnosis with high blood pressure, makes me fearful to confront the company nurse and ask her to document anything. People are fired from my employer on a daily basis. The company nurse probably would not do any documentation for me for fear of loosing his/her job. Does this help you to give me a more clear answer to my prior question about my job security than your last reply. I have 2 little boys and 2 mortgages. Have have had this job over 11years. I don't think the company nurse is going to be of any help to me, simply due to fear.


I can not guarantee you will be safe from being fired. The law does not prevent an employer from firing you but it does protect you in the sense that if they do fire you against FMLA regulations, then you can file your complaint with the DOL and you can sue your employer. Even though by firing you they are breaking the law, the employer can make that bad choice and unfortunately you are the one to suffer until you win a lawsuit and employers sometimes do this because they take the risk to see if you will actually sue them or just move on. I do not think they are looking for a way to fire you just because they asked you to recertify. They asked because you were taking more days a month than your fmla paperwork stated you needed and they are required to get you to recertify if it appears your leave need on your first certification is not sufficient.
Customer: replied 3 years ago.

Being given the fact that the doctor saw no adjustment necessary to the previously approved FMLA, not factoring in the company nurse conversation and her suggestions, is the fact of no new adjustments a reason for my employer to recode to prior coded approved FMLA as unapproved?

No the doctor not changing the days needed is not sufficient for the employer to change the past approved leave. They have to give you notice before you take the leave that it will not be coded as FMLA so from now on they may say after you go over x days provided in the certification the additional days will be unexcused and not coded as FMLA so unless they put in writing that they require you to take off for the draining days when your doctor does not, then you should work when your doctor has said you can work.
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