Employee late submitting FMLA certification? Don’t just fire! Find out why

Employees are supposed to get FMLA certifications back to their employers within 15 days. But it’s not a good idea to terminate an employee simply because you didn’t receive the paperwork on time.

The FMLA regulations include an out for employees who miss the deadline for reasons beyond their control. That can easily happen when a doctor’s office is overwhelmed with paperwork.

Recent case: Gary was an assistant store manager for Walmart. When he began having panic attacks, he asked for time off and was told he’d have to take disability leave.

The store manager gave him an FMLA packet, which included instructions for his doctor to fill out a medical certification. The doctor did, certifying that Gary had hypertension, depression and anxiety and needed FMLA leave.

Walmart claimed it never got the form despite a fax confirmation from the doctor’s office showing the date the form was faxed. Gary was fired for unapproved absences.

He sued, alleging interference and retaliation. He pointed out that the regulations allow for extenuating circumstances. Gary said he would have followed up if he had known Walmart never received the form.

The court said his case could go to trial. (Drake v. Wal-Mart, No. 2:10-CV-679, MD FL, 2012)

Final note: Courts hate needlessly draconian rules. Always give employees a reasonable chance to submit paperwork. Jumping the gun makes it look like you were looking for an excuse to fire someone.