Factual Scenario:
An employee calls in sick and indicates he will miss the next two weeks of work. The employer sends the employee a notice of FMLA eligibility criteria and employee rights and responsibilities form. The employer also sends the employee an FMLA certification form and requests that the employee obtain a certification from his/her health care provider describing the nature of the illness. The notice states that the FMLA certification must be returned to the employer within 15 days. The employee fails to return the FMLA certification within 15 days.
Can the employer terminate the employee for failing to return the FMLA certification within 15 days?
Answer:
The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employment." 29 U.S.C. 2612(a)(1)(D). After an FMLA qualifying absence, the employer must restore the employee to the same position or a position comparable to that held by the employee before the FMLA leave.
As part of the FMLA process, an employer may request that an employee provide it with a certification from the employee's health care provider certifying the employee has a serious health condition. See U.S. Department of Labor (DOL) optional certification form WH-380-E (here). The employee is required to return the completed certification to the employer in a "timely manner." The DOL's regulations provide that "timely manner" means:
An employee must provide the requested 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 the employer provides more than 15 calendar days to return the requested certification.
29 C.F.R. § 825.305(b) (emphasis added).
If the employee fails to provide the certification in the allotted time period, then the FMLA permits an employer to deny FMLA leave to the employee until the certification is provided. 29 C.F.R. § 325.313. Consequently, any missed time from work following the expiration of the 15 day period and the date on which the certification is eventually produced may be unexcused and could subject the employee to termination under the employer's policies.
The employee, however, is allowed to provide the employer with a justification for why the certification was not returned in a timely manner. If the employee establishes that he/she engaged in diligent, good faith efforts to obtain the certification but was unable to do so, the employee cannot be denied FMLA assuming that he/she eventually produces a complete and sufficient certification form. Examples of diligent, good faith efforts include repeated requests to a provider to complete the certification without any response from the provider or where the employee's provider is on vacation during the certification period. In such situations, the employee has a duty to keep the employer apprised of the efforts to obtain the certification. On the other hand, if the employee is unable to establish that he/she has engaged in "diligent, good faith efforts" to obtain certification, then there is no exception to the 15-day rule and any absence from work will not be FMLA-protected.
The DOL has published a Fact Sheet on Certifications of a Serious Health Condition under the Family and Medical Leave Act which can be found here.
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