UPDATE: July 26, 2024: United Airlines said in an email to HR Dive Friday that its contract with the Association of Flight Attendants union allows it to require a physician's note in cases of suspected abuse of sick time and denied allegations that its policies are not in compliance with the Family and Medical Leave Act.
"The policy is narrowly tailored to the days when abuse has been occurring, and we hope to return to our usual approach of not requiring a doctor’s note soon," United said. "Our policy does not interfere with the right to take approved unpaid leave under the Family and Medical Leave Act, and it complies fully with federal law and our union contract."
Dive Brief:
- The U.S. Department of Labor is aware of recent United Airlines employee complaints regarding the company’s leave policies and is working to ensure United’s compliance with the Family and Medical Leave Act, Wage and Hour Administrator Jessica Looman said in a statement Thursday.
- DOL said it received “multiple inquiries” about the company’s leave policies. Separately, Sara Nelson, president of the Association of Flight Attendants-CWA union, issued a statement Thursday alleging United management “sent an offensive and accusatory scheduling alert” on July 20 requiring flight attendants to submit absence certificates for all sick leave calls taken on weekend days.
- Nelson said the claimed actions occurred just as airlines including United were affected by the CrowdStrike outage, which disrupted business software systems globally. She added that flight attendants had filed complaints with DOL. United did not respond to an HR Dive request for comment.
Dive Insight:
Per Nelson’s statement, the AFA-CWA had previously complained to DOL about United’s practices potentially violating the FMLA and filed a grievance with the company over alleged contract violations related to employee claims that occurred the weekend of July 20.
“Requiring workers to provide medical verification for already approved FMLA is both burdensome and costly,” Nelson said. “It is clearly meant to dissuade workers from taking necessary leave for their medical condition, and this has been widely found to be unlawful interference in the right to take FMLA.”
According to DOL guidance, the FMLA permits employers to request recertification for protected leave no more than every 30 days and only in connection with an absence by an employee. Employers are permitted to request recertification of leave in less than 30 days if the employee requests an extension of leave, the circumstances described by the previous certification have changed significantly or the employer receives information that casts doubt either upon the employee’s stated reason for absence or the continuing validity of certification.
Attorneys have previously told HR Dive that employers must be careful when choosing to deny leave over delayed employee certifications. Generally, employees have within 15 calendar days to provide requested certification after an employer’s request, according to a DOL fact sheet.
Nelson’s statement also tied United’s leave policies to two 2019 DOL opinion letters — one issued in March and another in September of that year, respectively — both of which dealt with the question of whether employers may delay designation of FMLA-qualifying leave as FMLA leave. The agency, then under the Trump administration, said employers could not delay such designations and must auto-designate FMLA-qualifying leave as such.
“Requiring auto-designation of FMLA in all cases was a not so subtle effort to dilute workers' FMLA reserves, that they could otherwise use at their discretion,” Nelson said. “Not every company rushed to implement this interpretation of the law, but United management did and they doubled down on efforts to evade their obligations under the law with this recent blanket requirement of absence certificates.”
