Wednesday, March 18, 2015

You Want to Grant FMLA, But The Employee Won't Cooperate

We are often asked for advice by employers for the following situation: They have an employee who they believe in good faith has a serious medical condition that qualifies for FMLA leave. The employer  has done all of the right things. They have sent the employee all of the forms to complete for FMLA, including the medical certification form for their physician to complete. The problem is that the employee doesn’t return the forms, and isn’t able to return to work. Sometimes employees refuse to return the forms because they want to “save” their FMLA leave for later and use their paid benefit time initially. Others are perhaps too ill, have difficulty getting physician cooperation, or just don’t get around to completing and returning the forms. What is the recourse?

Of course, the obvious recourse is that the employer can deny the FMLA leave.  The employee can utilize any accrued benefit time without FMLA protections, including a right to return to a same or similar position. This approach frustrates many employers who want to consolidate leave time as much as possible by running benefit time and FMLA concurrently to avoid undue workplace disruption. When the employee “saves” their FMLA time, they can use their benefit time first, followed by an unpaid FMLA leave, resulting in possibly a much longer absence from the workplace.

Another option is one that employers rarely consider.  They can designate the FMLA leave even though the employee fails to submit the forms or medical certification.  The requirement for medical certification is more for the employer’s protection to ensure eligibility. The Department of Labor regulations, though, indicate that employee submission of the FMLA forms is not a prerequisite to the employer granting the leave designation. The regulation states:

If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee's need for leave, the employer may provide the employee with the designation notice at that time.

If the employer later suspects abuse, it can require a certification at that time. According to the DOL regulations “[T]he employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.”

Employers need not feel they are at the mercy of their employees to complete and submit FMLA forms. Uncooperative employees can still be placed on FMLA leave if the employer has good reason to believe that the employee would qualify.