Take extra time to review an employee's eligibility and certification forat the time of the request, not later.
As a new court ruling shows, employers who approve leave quickly and then say "Whoops, we goofed! You're not qualified" will have a difficult time in court arguing that the employee was never entitled toleave in the first place.
Recent case: After formally announcing his retirement, longtime employee Charles Sorrell changed his mind when he learned that FMLA leave might be available to help him care for his sick wife. So, he filled out the requiredpaperwork.
The employer quickly granted Sorrell's FMLA leave, despite errors in his certification form. Specifically, the note from his wife's doctor included very few details about her qualifying condition, and it was written as if his wife was applying for leave.
When Sorrell tried to return after his FMLA leave, the employer said his position had been eliminated. Sorrell sued, claiming the employer's failure to reinstate him violated the FMLA. A federal appeals court sided with Sorrell and let his case proceed to trial.
The employer's big mistake: approving Sorrell's FMLA request unconditionally without looking at the qualifying details. Had it recognized the doctor's note as insufficient medical certification, it could have asked Sorrell for more information. Then, if he had failed to respond adequately, he wouldn't have been entitled to the leave. (Sorrell v. Rinker Materials Corp., No. 03-4359/4443, 6th Cir., 2005)
Final note: It's up to you to ask employees for medical certification. Unless you ask for it, employees aren't required to provide it. And if the certification is incomplete or lacking information, always advise the employee of that fact, and give him a reasonable chance to correct it.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Faced with allegations boss is biased, investigate ASAP and fire if necessary
- You don't have to ask for FMLA certification for every absence
- FMLA leave spikes before weekends, holidays? Investigate suspected abuse, fire if warranted
- Call lawyer before considering anything like a noncompete--even a gentlemen's agreement