Ask The Lawyer, Is it OK to stay out on leave when I’m feeling better?


QUESTION: I had hip replacement surgery, and my doctor wrote me a prescription for 12 weeks of Family and Medical leave. After seven weeks, I was feeling pretty good, my hip wasn’t bugging me at all. Since work gave me 12 weeks off, I’m planning a trip with some friends in two weeks – camping, hiking and sailing up north. Is it OK to stay out on leave when I’m feeling better?

ANSWER: No, it is not OK – and if your employer found out, you could be fired.

Under the Family and Medical Leave Act, if your doctor gives you a medical certification placing you on leave for more than 30 days, your employer can’t ask to “recertify” (verify that you still have a serious medical condition that prevents you from working) during that time unless the employer receives information that “casts doubt on the … continuing validity of the certification.” If that happens, the employer can ask the worker on leave to provide a recertification in as little as 15.

What kind of information would “cast doubt” about a certification? The FMLA provides an example right in the statute! “[I]f an employee is on FMLA leave for four weeks due to the employee’s knee surgery, including recuperation, and the employee plays in company softball league games during the employee’s third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification …” 28 CFR 825.308(c)(3).


Being given a set number of weeks’ leave for a “serious medical condition” doesn’t mean you get to take the full period of leave if you recover earlier than expected. Sure, you could probably go on vacation and your employer would probably never know. But the best laid plans of mice and men often fail, and there is always a very good chance that a co-worker, and then your boss, could learn that you were out hiking and sailing when you were supposedly too ill to work – and you would likely get the ax. Is that a risk you want to take?

So, put your plans on hold for a little bit. Get in touch with your boss – and with your doctor – and get a new certification, stating you are able to work. This process itself can take some time, so you might be able have your cake and eat it too – and go on your vacation without risk of repercussions.

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By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
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