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FMLA and late certification: Can we fire for missed deadline?

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in FMLA Guidelines,Human Resources

Q. As the law requires, my company provides FMLA leave to employees, provided they submit medical certification forms completed by their health care providers, within 15 days. A late submission is grounds for discharge under the company’s employee absence policy. Health care providers being what they are, we frequently receive forms after the deadline. I have a problem employee out on FMLA leave again, who has not submitted a medical certification form within the 15-day deadline. What options are available to me as the employer? Will the employee be protected by the FMLA if I choose to discharge her for not providing the certification form in a timely manner?

A. Technically, an employer can discharge an employee for failure to return a medical certification form within the 15-day deadline. The employer is required to provide the employee written notice of the medical certification requirements and the consequences of an employee’s failure to provide certification as required.

However, there has been a recent trend to provide employees an exception to the time requirement for “diligent, good-faith efforts.” For instance, if the employee submits the form to the health care provider in a timely manner and provides multiple reminders of the deadline, the late submission probably will be excused due to the employee’s diligent, good-faith efforts. The employer should be aware of the employee’s efforts before making any adverse employment decision regarding the employee.

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