Know the documentation rules and timetables for FMLA certification requests
You don’t have to take an employee’s word for his need for FMLA leave. In fact, it’s a good practice to always require a certification. That way, there are no questions later about whether an absence was covered FMLA leave. Just make sure you understand the rules.
First, as soon as you find out an employee may need leave (usually because she told a supervisor she was going to miss work), send the employee a blank certification form with instructions. Tell her the form must be returned within 15 days. Then, when the form comes back, check it for completeness. If something is missing, tell the employee what you still need and give her another seven days to get the information.
If she doesn’t comply you are free to deny FMLA leave and discipline her for the absence.
Recent case: Roberta worked for the Salvation Army. She told her supervisor she would soon need to take time off for heart surgery, and specifically requested information on taking FMLA leave.
The Salvation Army gave her the standard certification form available from the U.S. Department of Labor (see box below). Roberta twice submitted two incomplete versions. After each submission, the Salvation Army told her it could not approve her FMLA leave without a completed form. After her second incomplete submission, the Salvation Army specifically explained that the required information included whether she would be able to perform some or all of her job functions and her expected period of incapacity.
Roberta then missed work. After three days, the Salvation Army told her she had seven days to get the forms completed. She didn’t and was terminated.
Roberta sued, alleging that she was eligible for FMLA leave.
The court disagreed. It said the employer was within its rights to request the certification and gave Roberta the time required by law to comply. Because she didn’t furnish the information, her leave request could be denied and her termination was legal. (Ahmed v. The Salvation Army, No. 13-1122, 4th Cir., 2013)
Certification rules for FMLA leave approval
When an FMLA issue involves a serious health condition, there are two main concerns when it comes to approving leave through the certification process. The first is whether the form is completed properly. The second is whether you agree that the employee, her child or spouse or parent actually has a serious health condition making her eligible for leave.
If you are satisfied that the employee and her health care providers gave the requested information, but disagree with the provider’s conclusion that the employee or his or her family member has a serious health condition, you can request a second certification from a different health care provider. As the employer, you must pay for this certification. If the second certification doesn’t agree with the first, you can request and pay for a third, tie-breaking certification and base your approval on it.
On the other hand, if the initial certification is incomplete, you must let the employee know, specifying the additional information you need and telling her she has seven days to submit the information.
