Q: We have become more aggressive on suspected cases of FMLA abuse and, as a result, we have sent a greater number of employees for second and third opinions after they turn in medical certification. Once we have received the second or third opinion, how long can we rely on it?
FMLA - Medical Certifications
Employee’s Lack of Diligence in Obtaining Timely Medical Certification Destroys Her FMLA Claim
As a management side attorney, I love when an employer prevails in an FMLA case. However, I’m doubly giddy when the case provides real, practical takeaways for employers that help them better administer FMLA leave. Yesterday was one of those giddier days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith effort to turn the certification in on time. In its decision, the court explained for employers the various ways the employee could have shown that she was attempting in good faith to return medical certification.
“No Soup for You!” If An Employee Doesn’t Turn in Medical Certification, FMLA Leave is Not Protected
Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification?
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.
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:
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?
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.