An employee who fails to return the medical certification for a family and medical leave (FML) qualifying event in a timely manner may miss out on the rights and protections afforded by federal law.
There may be times when HR professionals find themselves on hold pending the medical certification forms needed to properly designate FML leave. The underlying reason could be out of the employee’s control, as in a situation where they are incapacitated to such a degree that someone else must carry out this step on the employee’s behalf. But if the employee is dragging their feet or simply refusing to return the documentation, the leave may be denied.
The actions to take will depend on the situation. For example, if an event is clearly FMLA-qualifying (i.e., childbirth, a car crash covered by the news) and the employee has sufficient information to validate the need for leave, the employer can designate leave as FML without the medical certification. Caution is advised as incorrectly designating leave as FML when a serious health condition is not involved could lead to a claim of FMLA interference.
Additionally, 29 C.F.R. 825.305(b) specifies that the certification can be requested at a later date if the employer has reason to question the appropriateness of the leave or its duration.
A recent Department of Labor (DOL) opinion letter clarified that neither an employer nor employee can delay the designation of leave for a qualifying condition. This holds true even in situations that are obvious, but the employee wishes to delay or decline the designation by not returning the medical certification.
Failure To Return Medical Certification
FMLA regulations are clear that leave is not FML if an employee never returns the medical certification, except for situations where the condition is obvious as noted above. For situations where an employee requests FML but fails to provide the medical certification, best practice would be to give the employee a second opportunity to furnish the required material. Consideration should also be given if the employee is unable to respond in a timely manner (e.g., hospitalized or unable to respond because of the medical condition).
This could take the form of a follow-up letter affording them a reasonable amount of additional time in the range of seven to 10 calendar days. Such letters should also detail the ramifications for failing to return the certification. Namely, FML could be denied, and the absence could be subject to adverse consequences up to and including termination.
In addition, cautionary language could be included explaining that local, state personal, or state sick leave could also be denied if the conditions for providing medical certification in local policy are not met (e.g., after three or five days of continuous absence).
An employee who delays or refuses to return required certifications can amplify an already complex and time-consuming process. HR professionals who are familiar with FML best practices and local policy will be better positioned to rectify tricky situations with confidence. Complex scenarios that could result in termination or could have tie-ins with the Americans with Disabilities Act (ADA) should be met with caution and discussed with local counsel prior to taking negative employment actions.
For more information related to this subject, see the following HRX articles and available resources.
Keith McLemore joined HR Services in 2015 and assists districts with compensation planning and development. He has 17 years of experience traveling the state supporting public education employees.
McLemore received a bachelor’s degree from Southwestern University and a master’s degree from Texas Tech University, both with a focus on research analysis and design. He is a SHRM-CP.
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