Q. Dale has been using intermittent FMLA leave for approximately 2 years and knows how much he can use without exhausting his annual FMLA benefit. Dale continuously exceeds the doctor’s recommended frequency for leave. What do you do with an employee who is using more FMLA than the doctor has stated they should need?
A. Employers are not required to protect time off under FMLA that is not supported by a medical certificate. You can request Dale “cure” his medical certificate and confirm the need for additional time off. Dale gets 7 days to cure the FMLA medical certificate. If Dale informs you within 7 days of the curing notification, that he needs more time, he can receive an additional 7 days. If Dale does not return the “cured” medical certificate within the extended 7 day period, you can deny Dale protection under FMLA for the time not “cured.”
Remember, when FMLA ends ADA begins. If you deny the exceeded leave time under FMLA, you will need to engage the employee in the interactive process under the ADA to determine if it is an undue hardship to provide the days denied under FMLA as an accommodation under ADA. However, the employee is required to provide medical certification confirming the need for the leave as an accommodation to allow Dale to perform the essential functions of their job. A bright note is, it is common for the employee to “cure” the original FMLA medical certificate, once you ask them to go through the more arduous process of an ADA accommodation request. If Dale decides to change his mind and take the time to cure the FMLA medical certificate, we would recommend you then retroactively protect the FMLA leave that was previously denied. Otherwise, if Dale does not provide a cured FMLA medical certificate, move forward with the ADA Good Faith Meeting process and determine if the accommodation is reasonable and not an undue hardship.
TIP: Remember you need to document your justification for curing. LMS Members go to the FMLA Curing Process:
- FD2001 FMLA – ADA Curing Second – Third Medical Opinion Justification Form, and
- FD2106 FMLA Exceeding Medical Certificate – Advise to Cure or Seek Second Opinion, and the
- FD2107 FMLA Medical Certificate Curing Extension Letter
If you are in CA be sure to use the CA specific forms. If the leave is also related to a Workers’ Compensation Injury, use the same letters with the corresponding Workers’ Compensation text.
You can find the FMLA Denial Notification and Conditional ADA Designation Letter under the FMLA to ADA Transition section.
- CA2303 FMLA – CFRA Denial – Not Complying with Medical Certificate Requests – ADA – FEHA Conditional Designation
- FD2303 FMLA Denial – Not Complying with Medical Certificate Requests – ADA Conditional Designation
If you’re not an LMS Essential or VIP subscriber, you can easily do the following to learn more!
- Request a DEMO from us.
Do you want to quickly become a Medical Leave and Accommodation Rockstar, but you’re not sure where to start? You’ll love our 2-day workshop on Medical Leaves and Accommodations called:
How will this 2-day workshop benefit you? Well, other than earning 12.25 HRCI, SHRM, and IPMA credits, you’ll also be able to master the following:
- How to implement compliant FMLA/CFRA, ADA/FEHA, Pregnancy Disability and Workers’ Compensation programs, including California’s New Parent Leave
- Best practices for handling related performance management issues, and harassment, discrimination and retaliation challenges
- How to stop fraud and abuse of FMLA/CFRA (or ADA/FEHA) without getting sued
- Master Integrating and complying with the various medical leave and accommodation regulations, accurately and consistently, especially when two or more of them run concurrently.
As an HR Expert Witness in Medical Leaves and Accommodations, I can tell you that the most common area that gets organizations sued is when the FMLA/CFRA to ADA/FEHA transition is not done correctly, which is why mastering these processes is crucial to ensuring your organization functions optimally.
There are still scheduled sessions in the following California cities from October till December:
- San Francisco – 4th to 5th October 2018
- Fresno – 11th to 12th October 2018
- Anaheim – 8th to 9th November 2018
- San Jose – 6th to 7th December 2018
For the 2-day workshops in Anaheim, you can still get a Super Early Bird Discount ($200 OFF!!!) on the Registration Fee if you sign up on or before the 25th of September 2018!
The LAST DAY for the Super Early Bird Discount is today, so click on the Anaheim link and register!
Other discounts that you can take advantage of are:
- $200 Super Early Bird discount or a $100 Early Bird discount
- $100 discount for each attendee beyond the first one
- 5% discount for SHRM, HRCI or IPMA members.
- 5% discount for LMS Essential subscribers and a 10% discount for LMS VIP subscribers receive an automatic discount
Note: This publication is for informational purposes only and is not intended to substitute for particularized legal counsel concerning specific legal issues or matters. This information is provided from the perspective of an In-The-Trenches Medical Leave and Accommodation Human Resource Consultant and HR Expert Witness, with over 25 years of HR experience.