Q. Jim has been sick and forgot to return his FMLA intermittent medical certificate to us within the required 15 days. We gave Jim a 7 day extension, but he said he was so sick, he forgot to return that certificate as well. We denied Jim’s FMLA intermittent leave request and disciplined him for breaking our attendance policy because he never turned in the proper paperwork. What if he re-applies for FMLA and wants us to retroactively apply FMLA? Can he reapply for retroactive FMLA?
A. You have several issues going on here. FIRST, when FMLA ends ADA begins, all the time, every time, NO MATTER WHAT, unless Jim is determined to not be a Qualified Individual with a Disability (QID), it is established it is an Undue Hardship to provide the Intermittent Leave as an accommodation, or it is an Unreasonable request.
If Jim does not respond to the request to provide the FMLA certification to confirm eligibility, we then send a FMLA denial notice and inform Jim he may be eligible for protection under the ADA. If he fails to respond to the request to provide documentation regarding his potential eligibility under the ADA and does not engage in the interactive, good faith meeting process, I would move forward with denial of the ADA. At that point, since Jim’s leave is not protected under either FMLA or ADA, we would then 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 he originally requested FMLA. You, of course, would then rescind any personnel actions regarding attendance retroactive to the start of his FMLA.
There are many nuances and details to the process described above so be sure you understand the details and the strategies well. As an HR Expert Witness in Medical Leaves and Accommodations, I can tell you that a common area that gets organizations sued is when the FMLA to ADA transition is not done correctly, which is why mastering these processes is crucial to ensuring your organization functions optimally.
Here are some of the resources on the Leave Management Solutions (LMS) Membership webpage to check out:
- FC1010 FMLA to ADA Transition.
- HC1007 The FMLA to ADA Transition Checklist
Forms and Letters:
- FD2303 FMLA Denial – Not Complying with Medical Certificate Requests – ADA Conditional Designation
- FD1001 ADA Essential Function Job Analysis – Health Care Provider Evaluation Form
If you’re not an LMS Member, you can easily do the following to learn more!
- Request a DEMO from us.
Leave Management Solutions (LMS) offers an interactive, 2-day training that provides proven techniques for managing medical leaves and accommodations as well as transitioning from FMLA to ADA, specifically in California.
Our LAST workshop of the year is December 6th and 7th in San Jose, JOIN US!
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We specialize in how to handle and manage multiple leaves and accommodations, even when dealing with FMLA, ADA, Workers’ Compensation and Pregnancy Disability, as well as how to handle and respond to potential fraud and abuse. The 2-day workshop will also help you learn how and when to impose your attendance policies and how to handle performance management issues for employees on intermittent or ongoing medical leaves. You will also learn how manage those tricky responses to the related harassment, discrimination, and retaliation complaints.
We also offer monthly online internet coaching and mentoring meetings so you can get your questions answered quickly for ONLY $75 per meeting, AND you earn SHRM, HRCI and IMPA credits for joining us.