Family and Medical Leave Issues

I got an email this morning regarding the Family and Medical Leave Act (FMLA). The employer has been having issues getting the appropriate documentation from the employee's medical provider. She contacted me to see what she could and should do.

According to the FMLA Regulations, the employee must provide a complete and sufficient certification to the employer, if required by the employer, in accordance with sections 825.306, 825.309, and 825.310. If the employer finds the certification incomplete or insufficient, the employer must advise the employee, in writing, about what is necessary to make the certification complete and sufficient. The employer must then provide the employee seven days to correct any deficiencies. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave, in accordance with §825.313.

It seems simple enough, but any HR practitioner who has had to deal with FMLA will tell you it is just not that simple.

If you deny FMLA leave, do you still provide the employee with time off? If you do, how much time do you give them? Do you allow them to continue benefits?

If you process as FMLA, do you require the certification requirement for other employees?

One problem with denying FMLA leave is that you may have a good employee who runs into problems with his or her provider. If you make an exception for that employee, then you are creating a new practice, which you must follow for the bad employees who do not make an effort to get their forms completed.

I once had an FMLA issue where the employee's provider told him that he charged $10 per page to complete the FMLA form. The employee was already going to be on leave without pay and did not have the money to get the form completed. I was aghast that the provider would be so callous as to create a situation that might negatively impact the employee but later found out it is not uncommon.

The point is that there are legitimate situations that are not the fault of the employee which could negatively impact his or her eligibility for FMLA leave. Do you create a policy that would have the employees suffer?

According to every attorney I have ever spoken with on the matter, the answer is YES.

Yes, require the certification. Yes, deny the leave if the certification is insufficient and not corrected in the appropriate time period. Yes, offer other leave if it is available through company policy. Yes, terminate if the employee is not eligible for any additional leave and does not come into work. No, it does not matter if the employee was a good worker or not.

As you know (from reading my posts so diligently) consistency is one of the edicts of good HR work. By utilizing the certification process and applying it consistently, you allow the company to act within its rights and terminate those employees who miss time outside of the leave they are provided by company policy and/or employment law.

It is sad that you have to terminate a great employee because the healthcare provider did not do its part. It would be worse if you had to keep a bad employee because he or she played the system and exploited your vulnerabilities. It should be noted that you could always hire the great employees back when they are able to return to work.

Still, I have never been comfortable with the approach. In my opinion, if your company can afford to give people the time off, then it behooves the company to get the FMLA clock ticking. If you can run FMLA time concurrently with a worker's compensation injury, then do it. If you can count sick time as FMLA time, then do it. The employees who are scamming the company will use up their mandated leave and then they will be stuck.

FMLA allows 3 months of leave per 12 months. Smart employers use a rolling 12 month period to determine available FMLA leave. This means that the employee cannot use FMLA for 3 months at the end of a year and then another 3 months at the beginning of the year.

The problem with the approach I prefer is that you run the risk of having employees abuse FMLA leave. This creates problems with scheduling and continuity of business operations. If you have enough redundancy and/or a part-time/as-needed workforce, then you should be fine. That is not going to be the case with most employers.

Knowing that, my recommendation is in line with the attorneys' points of view. Keep your rights by requiring the certification and holding employees accountable for providing the appropriate documentation. If they are not eligible for FMLA, then provide applicable company leave. If they are not eligible for company leave, then deny the leave and, if necessary, terminate.

I cringe to write that. To counter my cringing, I will go one step further. Offer as much assistance as you can to help the employee. Explain the ramifications of not having the form completed. Call the provider to explain if necessary. Document these steps (again, if you have been reading my posts, you know about my rule of documentation). Do your best to ensure you have taken steps in good faith to help the employee. If they do not meet the requirements, then they are not eligible for the protections of FMLA, specifically the job protection and benefit continuation aspects.

By keeping a strict line on your actions, you are protecting the company from charges of discrimination. By offering your assistance, you protect the company by showing good faith efforts to help the employee.