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Warn employees: No FMLA certification, no excused absence

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in Employment Law,FMLA Guidelines,Human Resources

Employees sometimes think of FMLA time as nothing more than sick leave—and unpaid sick leave at that. So they don’t want to go through the hassle of having their doctors complete FMLA certification forms.

But if employers take a lackadaisical approach to certifications, they might be issuing an invitation to abuse FMLA leave. Remind your employees that they must provide FMLA certifications—and that refusing to cooperate will result in the time off being counted as unexcused absences. The consequence: possible termination.

Recent case: Hestal Lipscomb, who worked in EDS’s mailroom, suffered from a medical condition that sometimes required surgery to remove nonmalignant tumors. The EDS employee handbook warns that excessive unexcused absences may be grounds for termination.

When Lipscomb told the company she needed surgery, it notified its FMLA administrator, CIGNA, which sent Lipscomb five letters asking for medical certification. When it didn’t get any response, CIGNA enlisted a supervisor to remind her that she had to submit the forms. Despite several warnings from the supervisor, Lipscomb still didn’t provide the information.

CIGNA then refused to certify the time off as FMLA leave. Then EDS fired Lipscomb for excessive absences. She sued, alleging FMLA interference.

The 3rd Circuit Court of Appeals dismissed her lawsuit. It reasoned that Lipscomb had been warned that not providing the information had serious consequences and that her employer was entitled to the certification. (Lipscomb v. EDS, No. 06-5102, 3rd Cir., 2008)

Final note: The best way to avoid FMLA leave abuse is to establish a certification policy and stick to it. Doctors are accustomed to providing certifications—it’s no hardship.

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