FMLA issues that plague employers and how to cope with them, Pt. II

During my career with the DOL’s Wage and Hour Division, I spent 22 years enforcing FMLA regulations, and I saw firsthand the many quirks of the law that tend to plague employers. In a June Wage and Hour Watch I outlined a few of the most common FMLA issues faced by employers. That blog shared the philosophy of administering FMLA that I promoted over my DOL career: (1) Don’t lose FMLA focus; (2) Hold employees accountable; and (3) Communicate-Communicate-Communicate. I also promised to share more thorny FMLA issues and how best to deal with them. Today in Part II, I will discuss problematic FMLA medical certifications, focusing on open communication and holding employees accountable.

Untimely Medical Certifications:

Absent extenuating circumstances, employees are required to provide FMLA medical certification within 15 days of receipt of the FMLA forms from their employer. If they fail to do so, the employer may delay or deny the FMLA leave request (29 CFR §825.305(d)). I have always recommended to employers that if they have an employee who has not submitted the medical cert within the 15-day time frame, at day 16 they should check with the employee on the status of the certification (communicate), and notify the employee in writing that they have an additional ‘X’ number of days to return the clarified certification, or their FMLA will be denied. If the new deadline is missed and the leave is denied, the employee is still entitled to some FML if they subsequently submit an acceptable medical certification. But the FML start date may be delayed by the number of days the certification was late based on the original 15-day deadline. One key point to remember: if the non-FMLA absence (due to the delay or denial of FML) triggers a disciplinary action, the discipline may stand even if the employee later submits a medical certification. Utilizing this policy comports with FMLA rules while sending a message to employees that deadlines for the submission of FMLA paperwork are enforced, with consequences for failure to do so.

Deficient Medical Certifications:

The FMLA regulations at 29 CFR §825.307(a) state:

“It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.” 

In the real world, medical certifications are sometimes ambiguous, incomplete, incomprehensible, or flat-out erroneous.   Employers should not accept such deficient certifications - remember, the goal is to hold employees accountable. The employer should give the employee the opportunity to contact their health care provider to remedy the deficiency. I suggest that employers give the employee a memo he or she can take to their health care professional, explaining the deficiency. Do not overlook the obligation to provide the information in the FMLA Designation Notice, Form WH 382. (An employer must not only tell the employee if the certification is not complete or not sufficient, but must also “specify the information needed to make the certification complete and sufficient.”) The FMLA generally gives the employee seven days to return the corrected medical certification to the employer. Alternatively, if the employee is willing to provide authorization, the employer (but not the employee’s direct supervisor) may contact the health care provider directly to obtain the clarification. Just remember that employers are not allowed to ask for any information that is not requested on the official DOL medical certification forms. If the employee does not give authorization to contact the health care provider, and fails to meet the seven-day deadline to provide the clarification, then the employer may deny or delay the start of the FML, just as in the case of an untimely medical certification.

Multiple Medical Certifications:

There are cases where employees or their immediate family members have a number of health issues that may necessitate multiple FMLA requests, resulting in multiple concurrent medical certifications. These situations lead to concerns for those employees, but some sympathy is also due their employers. Managing FMLA for employees with more than one FMLA-qualifying reason can be a taxing experience. Communication with such employees is even more crucial. Employers in this situation should stay abreast of the health conditions, and track the specific reason for every FMLA-covered absence the employee may have. Without knowing the condition for which the employee is claiming FML, it is not possible to monitor whether the employee’s absences fall within the frequency and duration parameters of each certification. I have encountered employees and their representatives who believe that an employer may not ask the specific reason for an FMLA absence, and that it is sufficient for an employee to meet their notification requirements by simply calling in to report that “I am taking an FML day.”  Such a belief is simply incorrect. Here is what the FMLA regulations say:

“In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA-qualifying.”  (29 CFR §825.301(a))  

Employers should not accept “I’m off on FML today,” particularly when the employee has multiple FMLA-qualifying reasons.   Employers have a right to get specific details from an employee on why he or she is absent from work, if there is even a suspicion that FML is in the mix. In fact, the FMLA regulations cited above obligate employers to ask these types of questions.  This also applies when dealing with employees who have or are requesting FML under a single medical certification.   

Your goal as an employer should be to comply with the FMLA provisions, to treat all employees equitably, and to hold them accountable. When an employer encounters untimely or deficient medical certifications, or vague reasons for absences, the importance of following these steps cannot be stressed too highly. Approving sub-standard certifications and accepting lame excuses for absences will only create more problems with the employee requesting FML, and in future instances when other employees submit poor FML documentation. 

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Mike Staebell