HR Professionals, do you know what to do if an employee does not return their FMLA Certificate?
We are going to use an employee named Jim as an example…Jim has neglected to return his FMLA certificate.
Jim has been sick and forgot to return his FMLA intermittent medical certificate to within the required 15 days. The employer gave Jim a 7 day extension, but he still failed to return the medical certificate.The company denied Jim’s FMLA intermittent leave request and disciplined him for breaking their attendance policy because he never turned in the proper paperwork.
The employer wants to know, what if Jim re-applies for FMLA and wants the employer to designate retroactively FMLA? Can he reapply for retroactive FMLA?
We have several issues going on here. FIRST, when FMLA ends ADA begins, all the time, every time, NO MATTER WHAT, unless: 1) it is determined it is an Undue Hardship to provide the requested leave as an accommodation, or, 2) Jim is determined to not be a Qualified Individual with a Disability (QID).
So, if Jim does not respond to the request to provide the FMLA certification to confirm eligibility, even with a second request and providing extended time, the employer can deny FMLA - BUT WAIT - Jim he may be eligible for protection under the ADA. If Jim fails to respond to the request to provide documentation regarding his potential eligibility under the FMLA or the ADA, and does not engage in the interactive, good faith meeting process, the employer could move forward with denial of the ADA also. At that point, since Jim’s leave is not protected under either FMLA or ADA, implement the attendance policy.
If Jim later provides documentation confirming eligibility under FMLA, for the qualifying event Jim initially requested, I would feel comfortable retroactively designating FMLA from the date the initial FMLA conditional eligibility notice was sent.
As you can see…it really is not hard to avoid litigation or handle these types of situations, you just need the tools, resources, training, and process in place to guide you. That is why we have our 2-day workshops so you can learn how to handle these types of situations and more in the integrated process. Check out our next "In The Trenches" workshop in California below!