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Can you force a worker to get FMLA certification?

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources,Office Management,Payroll Management

Q. We want to run paid time off concurrent with FMLA leave so employees don’t receive more than 12 weeks off (paid and unpaid combined). What if an employee says she’s taking vacation time, but we know it’s for medical tests? Can we force her to get a medical certification so we can subtract the paid vacation time? —L.L., Georgia

A. The FMLA does allow you to require that employees substitute all available paid time off in place of any unpaid FMLA leave. To make it stick, the employer must include this requirement in its FMLA policy and indicate the same on its form response to the employee’s request for FMLA leave.

Your second question raises several issues. As a preliminary issue, many medical tests relate to minor health issues not covered by the FMLA. To be covered by the FMLA, the employee must have a serious health condition (as defined in the law). That said, if you have reliable information indicating that the employee has a “serious health condition,” you should inform her in writing that she appears to be eligible for FMLA leave and request that she return a completed certification from her health care provider.

If the employee insists her absences are not FMLA-related, consult with your attorney, who can evaluate all the facts and advise you on the best strategy. The FMLA provides few protections for employers, and you will want to ensure that you are on solid ground before taking action.

Finally, don’t forget about the ADA and state disability discrimination statutes. Under those laws, a leave of absence may be a “reasonable accommodation” for a disabled employee. Thus, in some situations, you may need to give a disabled employee more than 12 weeks of time off in a calendar year due to a medical condition.

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