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FMLA and termination for failing to submit certification

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in FMLA Guidelines,Human Resources

Q. Our company has an employee who has taken FMLA leave to care for his sick child. His attendance record has been poor, but we have not documented our warnings as well as we should have. Our company has a rule that an employee has 15 days to have the treating doctor sign and return a form certifying the medical condition of the family member who is sick. We never received the signed form. The employee says that his doctor sent it. Can we terminate the employee?

A. The answer appears to be yes. It’s even better if your company gives the employee an additional grace period of a week to file the form.

In Taylor & Taylor v. Ameritech Services, the court concluded an employee who failed to send in the form within the 15-day period could be fired for unexcused absences.

Had the employee diligently, in good faith and a timely manner attempted to file the form, but it was not “practicable” to do so, the result might have been different. The employee claimed that Ameritech had “interfered” with the exercise of his FMLA rights by using a bar-coded form that the treating doctor claimed he had sent in to Ameritech’s FMLA processor on three occasions. Even allowing for a six-day grace period, the form never arrived. The court concluded the employer was within its right to insist on the form. 

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