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.
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?
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.
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)?
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?
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:
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?
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?
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.
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.
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.