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Make sure you ask for FMLA certification each time employee says she needs leave

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in Firing,FMLA Guidelines,Human Resources

Employees have the right to take up to 12 weeks of FMLA leave to deal with a serious health condition, provided they meet the law’s length-of-service and hours-worked requirements.

If an employer wants to challenge a request for FMLA leave, it must give the employee 15 days to get a medical certification showing she has a serious health condition. Until the employer makes the request, the 15-day period doesn’t start running.

Disciplining or firing the employee before the time is up will most likely be considered an FMLA violation if it turns out the employee really did have a serious health condition.

That is why it’s crucial to create a system that tracks FMLA requests, documents that the employee was informed of her rights and understands she has 15 days to get a medical certification.

Recent case: Deborah Branham was twice employed as a receptionist for Gannett Satellite Information Network. She was terminated once for excessive absenteeism, but was rehired two years later. Then she started missing work again.

During the last stretch of apparent illness, Branham first took time off because her son was ill. Then she claimed her own illness prevented her from coming to work. Branham, however, did perform some work from home during the period she was calling in every day.

She got a medical certification from her doctor that appeared to clear her to return. However, she also told her supervisor that during the coming days and weeks, she had several medical problems she had to tend to, including treatment for anxiety, depression, migraine headaches and related conditions.

No one at Gannett informed her that she had 15 days to get a health care provider’s certification. Gannett then fired Branham again for missing too much work.

She sued, alleging she never had a chance to submit another medical certification. Her attorneys argued that the clearance from her doctor covered only her initial absences, not those related to her more recent need for additional treatment.

The court agreed and ordered a trial. It reasoned that, although Gannett knew Branham claimed she needed FMLA leave for multiple conditions, it never formally asked her to provide medical certification. (Branham v. Gannett Satellite Information Network, No. 09-6149, 6th Cir., 2010)

Final note: It’s significant that Branham was apparently able to work from home at least some of the days she was off. Her employer argued that meant she couldn’t have been incapacitated and therefore wasn’t entitled to FMLA leave.

Branham argued that she was sometimes able to perform some work between blinding headaches that made her extremely sensitive to light. However, she couldn’t perform all of her job, including coming into the office.

The court concluded that as long as an employee can’t perform one of the essential functions of her job, she is incapacitated as that term is used in the FMLA. In other words, you can’t use an employee’s limited ability and apparent work as proof she doesn’t have a serious health condition that renders her incapacitated.

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