Total Articles: 15
The DOL's FMLA Forms Expired on December 31, 2011. Should Employers Still Use Them?
In a flurry of activity at the end of 2011, several employers contacted me to determine whether the DOL notice and certification forms still were valid, even though they contain an expiration date of December 31, 2011. In short, employers may continue to use the DOL's FMLA forms, although consider our suggestions below before using these standard DOL forms.
Invalid FMLA certification can form the basis of employment termination.
In order to support a valid claim of retaliation under the Family and Medical Leave Act (FMLA), an employee must demonstrate that the reason given for an adverse employment action was pretextual, and that the employee’s request for or use of FMLA leave was the actual basis of the action. The 6th U.S. Circuit Court of Appeals has held that an employer’s rejection of an invalid FMLA certification was a valid reason for termination, and that the employee’s inability to proffer evidence of an alternate explanation for the company’s actions led to the dismissal of her lawsuit. Coffman v. Ford Motor Company, 6th Cir., No. 10-3842, unpublished opinion, 11/22/11.
3d Cir: No FMLA Protection for Employees Who Lie
The FMLA requires an employee to receive (unpaid) leave for certain family and medical reasons. Employers must provide certain notices to employees, determine employees' eligibility for FMLA leave, and track leave time in accordance with the FMLA's complex regulations. A recent opinion from the Third Circuit, though, makes clear that the employer isn't the only one obligated to follow the FMLA's many rules.
Employee Who Refuses to Provide Sufficient Medical Certification under FMLA is Lawfully Terminated
One the biggest FMLA headaches for employers is when an employee fails or refuses to provide information to cure insufficient or incomplete medical certification. When the employer does not have the information to determine whether an absence qualifies as FMLA leave, it is left with a true dilemma: Try and obtain permission to talk to the health care provider? Delay or deny the leave and face possible litigation? Or simply approve the leave and go on with your day (after all, it's easier to avoid the confrontation, right)?
FMLA FAQ - What if my employee's doctor refuses to use our form?
We have requested a medical certification from an employee who is seeking FMLA leave. We have our own certification form, and gave the employee a copy. The employee came back with a form letter from the doctor's office stating that they charge a fee for filling out FMLA certification forms, and a note from the doctor stating that the employee was injured and needed FMLA leave. Do we have to accept the note in lieu of our form?
2nd Update: GINA and certification forms
Following up on our initial post and previous update regarding the new Genetic Information Nondiscrimination Act regulations (which you may wish to read first), here is what we've learned:
Update: Does GINA really require you to change your certification form?
Earlier this afternoon I received a voice message from an attorney in the EEOC General Counsel's office, suggesting that our earlier post might have gotten things wrong when we said that employers should include the new GINA "safe harbor" language in their FMLA certification forms. So far we have only been able to exchange voice messages, but I will try to obtain further clarification from the EEOC and let you know what I learn. (And thanks to the folks at the EEOC for the call - we appreciate your guidance!)
Podcast No. 17: Recertification.
Your employee has requested leave due to a serious health condition - either his or her own, or to care for a family member. You've sent out the notices, received a medical certification, and designated an employee's leave as FMLA. However, as the weeks or months go by, you're not so sure that the employee still legitimately needs FMLA leave. What are your options? In this podcast, we discuss the ins and outs of recertification, including what it is, and when and how you can request it.
FMLA FAQ - When does the 15-day period for returning a certification start?
Q: I know that I have to allow employees at least 15 days to return a medical certification, but when does the 15-day clock start running?
FMLA FAQ - Can an employee fill out his own medical certification?
An employee seeking FMLA leave just turned in a medical certification form with handwriting that looks suspiciously like her own. If the employee filled out this form, do we have to accept it?
Employer should allow certification period to expire before taking adverse action based on employee's failure to provide FMLA medical certification.
The 6th U.S. Circuit Court of Appeals has held that an employer must wait until the expiration of the medical certification period in order to deny FMLA leave to an employee. Branham v. Gannett Satellite Information Network, Inc., 6th Cir., No. 09-6149, September 2, 2010.
Podcast No. 16: Can I Contact an Employee's Doctor Directly?
What can you do when you receive a medical certification from an employee, but you think it might be fraudulent, or you just don't understand what the doctor has written? In these instances, does the FMLA allow you to contact the employee's health care provider directly to inquire? In this podcast, we explain the circumstances under which an employer may authenticate or clarify medical certification - without violating the rules.
6th Circuit: Employee Can Proceed With FMLA Claim Despite "Negative Certification"
When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment. However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the "negative certification" may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.
Medical Certifications - Why, When and How?
The medical certification is perhaps the employer's most important tool for managing FMLA leave. Unfortunately, many employers simply don't use the certification process, or don't use it properly. In this podcast, we discuss why medical certifications are important, when and how to request them, and what to do when an employee fails to return a complete and sufficient certification within the alotted time.
Employee’s Alteration of Healthcare Provider’s Form May Invalidate FMLA Application.
The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of leave during a 12-month period under certain circumstances which include a “serious medical condition.” An employer is allowed, under the regulations associated with the FMLA, to require an employee to document his or her medical condition, and further may require the employee to submit certification of that condition from a health care provider.
