Do you know What Happens
when an employee exceeds their FMLA/CFRA medical certificate – can you deny the leave?
Let’s navigate these complex Integrated Medical Leaves and Accommodation challenges TOGETHER.
In less than 5 minutes LMS can provide you with strategies to manage your CA PDL/FMLA, ADA/FEHA, CFRA Baby Bonding (BB) challenges.
It really is crazy how complex handling medical leaves and accommodations has become in California. That being said, it is easy to understand why so many HR / Leave Coordination managers are not that clear on how to manage these situations.
Let me tell you how I helped this organization solve their challenges with unpredictable leave, avoiding litigation…
We are going to use an employee named Dale as an example... Dale's leave exceeds his FMLA/CFRA medical certificate - Can you deny leave?
Dale’s leave is exceeding his FMLA medical certificate, can you deny the leave?
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?
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 under FMLA, once the employer has documented the need to cure the medical certificate and asked the employee to obtain clarification.
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 required time period, you can deny Dale protection under FMLA for the time not “cured.” BUT - 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. (NOTE: In CA the Interactive Process is required by both the CFRA and FEHA once CFRA is exhausted)
However, the employee is required to provide medical certification confirming they have a disability and that the need for the leave as an accommodation to allow Dale to perform the essential functions of their job, as a result of a Disability not a Serious Health condition – they are different definitions. 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 they failed to cure under FMLA.
If Dale decides to change his mind and provides the cured 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 Dales has a disability under ADA, and that the accommodation is reasonable and not an undue hardship.
If you found this helpful, please check out our upcoming 2-day workshop "In The Trenches".
In The Trenches
By HR - For HR
The Ultimate Guide to California Medical Leaves and Accommodations, and Handling Performance Management and related EEO Harassment, Discrimination and Retaliation Challenges
Over the last 20 years, we have had 100’s of HR professionals, consultants, benefits specialist, attorneys and even doctors to our coaching/mentoring/training sessions. PDL, FMLA/CFRA, ADA/FEHA, PFL, SDI, PFL, and Workers' Compensation as well as strategies for Handling Performance Management and related Harassment, Discrimination and Retaliation complaints from protected employees.
CA Human Resource Consultant
“Beth's approach is easy to understand, comprehensive, and enlightening. Anyone who needs to administer leaves of absence for their company should attend this workshop. Participants indeed obtain everything they need to administer leave of absence policies and procedures for their employees after attending this workshop. Beth offers one-on-one guidance following participation in the seminar through her website, discussion groups, and posts. She is extremely knowledgeable, and this information is an extremely critical part of the human resources function.”
As you can see, it really is not hard to avoid litigation or to handle these types of situations, you just need the tools and procedures in place to guide you through the situation.
If you are an HR Professional and would like to get the tools and process in place to guide you through the situation click the button below to learn more about our 2-day workshops