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Give staff at least 15 days to obtain FMLA certification

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in Employment Law,FMLA Guidelines,Human Resources

When it comes to collecting proof about an employee's FMLA medical leave, one stupid mistake can cost your organization big bucks. That mistake? Not giving employees at least 15 calendar days to obtain the necessary medical certification to prove their need for FMLA leave.

Key point: The same rule holds true in recertification cases if employees need to extend their leaves: You must provide at least 15 days from the date the employee asked for the extension.

To verify those dates, send notice of FMLA requirements to employees in writing, preferably by certified mail. Include the deadlines and consequences for not meeting them. Keep track of exactly when you tell employees to turn in the certification and when they actually return it.

Establish a tickler system to consistently track leave requests, the company response, certification requests and the date that the organization returned the certification. Follow the same procedure with every request.

Recent case: When Jackie Killian, a welder for Yorozu Automotive, needed surgery, she requested and was granted FMLA leave until Dec. 10. The surgery led to complications, so Killian called on Dec. 4 to request an extension. A company nurse orally approved the extension but asked for new medical certification.

The trouble began on Dec. 10, Killian's original return-to-work date. Her supervisor called her home, demanding to know why she wasn't at work. Killian explained that she received oral approval for extended leave and had 15 days from Dec. 4 to obtain certification. Her doctor faxed the form that day, but Killian's supervisor still fired her.

Killian sued, claiming an FMLA violation because the company didn't give her 15 days to obtain recertification for the FMLA extension. A jury agreed, awarding her $50,000. (Killian v. Yorozu Automotive Tennessee, No. 04-6202, 6th Cir., 2006)

Final tip: While it's not your responsibility to hound employees to submit the FMLA certification on time, it's smart to offer a couple gentle reminders (and document those). Courts will frown on companies that deny leave simply because the employee submits certification on the 16th day. That smacks of retaliation, and a jury might punish you, as this one did. 

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