Can employee go on FMLA or disability leave without providing documentation?

My employee went on FMLA leave for 3 months, then just before it ended, she said she was on disability leave for 2 months more. She never provided any documentation or doctors’ notes for either leave. She has not returned to work. Can I fire her?

Posted 06-15-2015

Steve Duggan replies:

You could conclude that she had abandoned her position, a voluntary termination. However, I am troubled by the facts you report. I cannot imagine how an employee can go on either FMLA or disability leave without providing documentation of the need for the leave(s). Even if she didn’t, the employer can require information from a doctor regarding the need for either type of leave. If it does so, and she does not provide it, she can be terminated for unexcused absences and/or abandonment of her position. But, in your case, it appears that the employer acquiesced to five months of personal leave, because it did not assert its rights during that time, and therefore would be at some risk to fire her now without at least first warning her of its intent to do so if required documentation is not provided. I recommend that you consult with your HR director or above, and probably Legal, before taking any further action.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.