3 essential FMLA tools for your HR-compliance arsenal

Three easy ways to tackle FMLA issues, without having to call someone like me. I’ll explain after the jump…

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An employee gets open-heart surgery, but no FMLA.

I was reading this case the other day about an employee who needed to take time off to have open-heart surgery. She inquired about leave under the Family and Medical Leave Act and her employer provided her with several FMLA forms, including “Notice of Eligibility and Rights & Responsibilities,” “Request for FMLA Leave,” and “Certification of Health Care Provider.”

The employee was told to return the Certification in a timely fashion, which she did. However, the Certification Form was returned incomplete — the doctor had failed to complete most of one of the sections.

So, the employer wrote to the employee, told her what was missing from the Certification, and gave her time to complete it. However, when the employee submitted the “corrected” Certification, it was virtually identical to the original incomplete form.

Again, the employer informed the employee that the Certitication was incomplete and told her it would be “happy to reconsider [her] request for leave” if it received the Certification with all sections completed. However, the employee did not submit a new Certification. Instead, she left work to have heart surgery and remained in the hospital for a few weeks.

The employer’s policies provided for termination of employment after three days of unauthorized absence. After the employee failed to report to work for three consecutive days, the employer sent two more letters to the employee to remind her about the attendance policy and to allow her to submit a completed Certification Form. In the second letter, the company warned that without a completed Certification, it must terminate her employment.

As you may have guessed, the employee failed to submit the completed Certification and was fired. And, as you also may have guessed, she sued, complaining that the employer had interfered with her ability to take FMLA.

The court; however, dismissed her claim based on three factors you should all consider when dealing with an employee who requests FMLA leave:

Make sure that the employee returns a fully-completed Certification: An employer may require that a request for leave be supported by “a certification issued by the health care provider of the eligible employee.” The completed Certification allows the employer to make a good-faith determination whether the leave is FMLA-protected. A certification is incomplete “if the employer receives a certification, but one or more of the applicable entries have not been completed.” You don’t have to accept a Certification with missing information. Instead…

Offer the employee sufficient time to cure the errors/omissions: Remember that Courts tend to pay dividends (in the form of dismissal of employee actions) to reasonable employers. The FMLA provides that, after notifying an employee that her Certification Form is incomplete, an employer must “provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee‟s diligent good faith efforts) to cure” any deficiency. Here, the employer did that. Nonetheless, the employee failed to return a completed Certification. In fact, this employer went overboard by extending numerous chances for the employee to provide a complete Certification.* Yet, the employee still didn’t do what the law requires of her. So, if you get a Certification back with sections missing, inform the employee in writing what is missing, and give the employee at least seven days to correct it.

Have a publicized attendance rule and enforce it: Because the employee did not submit a completed Certification Form, the employer’s duty to provide FMLA leave was never triggered, and the employee was not entitled to the protections under the FMLA. Had she been approved, the employee’s absences would have been authorized. Since she wasn’t approved, they weren’t. The employer fairly applied it’s attendance policy and, only after extending the employee two additional chances to rectify the situation, did it terminate her employment.

* (Some of you FMLA gurus may be thinking to yourself, “Well, doesn’t the FMLA require an employer to contact the employee doctor to clarify incomplete portions of a Certification? Nope. That’s permissive; not mandatory. The FMLA regulations state that an employer “may contact the health care provider for purposes of clarification” after an employee submits a complete and sufficient Certification Form.)