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Place employee on ‘provisional’ FMLA leave while seeking 2nd, 3rd certifications

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in FMLA Guidelines,Human Resources

Employers don’t have to blindly accept their employees’ medical certifications.

The FMLA allows you to get a second opinion about whether one of your employees is eligible for leave to deal with his own serious health condition or that of a covered family member. If the two certifications don’t agree, you can get a third and final certification to break the tie.

But what happens during the interim? You should place the employee on provisional FMLA leave pending the outcome of the second and third certification.

If it turns out that the employee wasn’t eligible because two out of the three certifications said he or his relative didn’t suffer from a serious health condition, you can deny further leave. Note: You shouldn’t hold the interim leave against the employee.

Provisional leave does not apply, however, if the employee’s medical provider says the employee can do his job and doesn’t need to be absent. If the employee has already missed work while waiting for the certification, he can be terminated because FMLA did not cover the time off, nor was it provisional leave pending additional medical certifications.

Recent case: Michael Reed worked for Lear Corp. on the assembly line. The company had a terrible problem with absenteeism, with 20 to 40% of the plant’s employees regularly absent on any given workday. To get employees to show up, it instituted a no-fault attendance policy that mandated discharge for any employee who racked up 24 absence points in one year.

Reed was frequently absent and was fired when he hit 24 points. Apparently so were many others, because the company had to rehire many fired employees. Then Reed was warned: One more absence would mean termination.

He asked for FMLA leave and took the time off pending his doctor’s certification. It turned out that his doctor didn’t think he needed to miss work, and the absences were counted against Reed. He sued, alleging that he had been on provisional leave.

The court disagreed because Reed’s doctor had clearly said Reed could work. The court said this was different from the usual situation in which the employer puts the employee on provisional leave pending further certifications. (Reed v. Lear Corporation, No. 08-1498, 8th Cir., 2009)

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