When employees take intermittent FMLA leave, it’s your responsibility as the employer to insist employees regularly update their medical information through their physicians. That means you must be prepared to prove employees not only knew they needed to get their conditions recertified, but also received the forms.
Here’s how to make sure: Track how and when you sent the form to each employee and mark the deadline for its return in your calendar or tickler file. Until you are sure your employee got the form, don’t count against her any absences that may be part of.
Recent case: When Kristy Webster came down with hepatitis C while working for Hilex Poly, she got her doctor to certify that she needed intermittent leave. The company required recertification every six months and had a no-fault attendance policy that excludedintermittent leave.
When it came time for the second recertification, someone in HR put the form in an envelope with Webster’s name on it and placed it on the desk of Webster’s supervisor.
Webster didn’t return the form, claiming she never got it. She was absent, taking time off that would have been covered by the FMLA as intermittent leave. However, Hilex Poly fired her for violating the attendance policy. Webster sued.
The court ordered a trial after concluding it was the employer’s responsibility to make sure Webster got the form in time to have it completed. The time off should not have been counted against her. (Webster v. Hilex Poly, No. 1:06-CV-529, SD IN, 2007)
Final note: No-fault attendance policies can be dangerous. They seem deceptively easy to implement: just count the absences and terminate. But if you make a mistake by counting an FMLA absence anywhere in the tally, you are almost guaranteed a lawsuit. Always double-check all absences before making a final decision to fire.
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