Managing leave under the Family and Medical Leave Act (FMLA) is difficult enough. It can create even a bigger headache when an employee refuses to get FMLA medical certification. In this installment of her video series on FMLA medical certification, HR.BLR.com Senior Legal Editor Susan Schoenfeld, J.D., explains what employers can do when an employee is making no effort to provide requested certification.
Hello. I’m Susan Schoenfeld, a Senior Legal Editor for BLR’s human resources and employment law publications and I’m here today to talk about medical certification under the Family and Medical Leave Act-or FMLA, which is the topic of many tough questions we receive from HR managers through our Ask the Expert service.
We recently received this question from a frustrated employer:
"I have an employee who is off work due to a workers compensation injury. The employee refuses to get FMLA medical certification. Is there anything I can do? When his 12 weeks are up would we be able to terminate this employee or could he say he didn’t use any FMLA leave?"
First, remember that under FMLA, the employee must provide the requested medical certification to the employer within 15 calendar days after the employer’s request, unless it is "not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts", or unless the employer allows more than 15 calendar days to return the requested certification. In this case, the employee is NOT making those good faith efforts (he is making NO effort at all).
Note: An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially FMLA-qualifying. If an employee fails to respond to an employer’s reasonable inquiry regarding the leave request, the employer may deny FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying. In this situation, the employee is already on workers comp leave, so this would not work. However, it s very useful in situations where the employee is not otherwise eligible for leave.
So, if the employee refuses to return FMLA paperwork, the employer may designate the leave as FMLA leave, based on the information it has regarding the workers compensation injury (and assuming that the information will satisfy the FMLA tests for a serious health condition). At the end of the 12 weeks of FMLA, the employer must consider whether the employee is entitled to additional leave under ADA or state disability law, if applicable. If the employer determines to terminate this employee at the end of FMLA leave, it should first consult with its employment counsel given the possible interplay of workers’ compensation, FMLA and ADA.
The employer is always responsible for designating leave as FMLA-qualifying and for giving notice of the designation to the employee. It is not up to the employee to decide whether leave will be designated as FMLA leave. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving workers comp information), the employer can (and must) notify the employee whether the leave will be designated and will be counted as FMLA leave within 5 business days, absent extenuating circumstances.
In a previous video in this series of Q&As on FMLA medical certification, we addressed the question of whether obtaining medical certification is always necessary for leave. In our next video, we’ll address whether an employer can require an employee who takes intermittent leave to care for a child’s serious health condition to provide a note from the child’s physician for each missed day.
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