Document efforts to get FMLA certification
There’s a right way and a wrong way to terminate an employee who isn’t returning from FMLA leave. The right way: Offer every opportunity to ask for an extension—and document that you did so. The wrong way: Just fire her when she doesn’t show up on the day she was supposed to return.
Recent case: Anniesa worked at a Sanderson Farms poultry processing plant. The company provides FMLA leave for salaried employees that includes 13 paid weeks off, not just the 12 weeks of unpaid leave required by the law. Employees who need additional time off must provide medical certification showing they have an FMLA-covered condition. They have 15 days to reply to a notice from the company.
Anniesa took several FMLA leaves for surgery and other medical treatment, using up her 13 weeks of coverage. She asked for several extensions, having her doctors fill out the appropriate certification paperwork each time. She continued to receive her salary during these extensions.
When her last leave was about to expire, the company sent Anniesa a certified letter informing her she would be terminated if she didn’t ask for an extension and get another certification. She didn’t and was fired.
She sued, alleging she had tried to call in to report her continued absence and that she had really been fired for taking FMLA leave.
The court tossed out her case. It cited the company’s clear policy and the fact that the certified letter told Anniesa exactly what she had to do if she needed more time off. (Paris v. Sanderson Farms, No. 13-20239, 5th Cir., 2013)
Final note: An employee may be entitled to additional time off after using up her FMLA leave if she’s disabled under the ADA. Unpaid leave is often a reasonable accommodation.
