Always verify FMLA eligibility before approving leave
Issue: Courts won't look kindly on employers that OK an employee's FMLA leave but then change their minds.
Risk: In such cases, courts could grant FMLA rights even if the person was technically ineligible.
Action: Hold off giving final FMLA approval until you've reviewed medical certification.
Take the extra time to review employees' eligibility and certification for FMLA leave at the time of the request, not later.
As a new court ruling shows, employers that 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 to FMLA leave in the first place.
Case in point: Longtime employee Charles Sorrell announced his retirement, but he changed his mind after learning that FMLA leave might allow him to care for his sick wife and still retain his job.
Sorrell filled out the required FMLA paperwork and the company quickly granted his FMLA leave, despite errors in Sorrell's certification form. Specifically, the note from his wife's doctor included few details about her qualifying condition.
When Sorrell tried to return after his leave, the company said his position had been eliminated and a hiring freeze was in place. Sorrell filed an FMLA lawsuit, and a federal court let his case proceed to trial.
The company's big mistake: It approved 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, the company could have rejected his leave request. (Sorrell v. Rinker Materials Corp., No. 03-4359/4443, 6th Cir., 2005)
Final note: It's your duty 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 or her a reasonable chance to correct it.
