A review of the U.S. Department of Labor (DOL) regulations for the FMLA provides a helpful backdrop for an employer to consider its options when certifications are not submitted. Under those rules, an employer generally is free to require that an employee seeking statutory leave to care for his or her own serious health condition or that of a child, spouse or parent support that request with a certification by the relevant HCP. Notice of such a requirement must initially be provided to the employee in written form, as specified in the regulations. After that point, an oral request for medical certification is sufficient. In some situations, subsequent recertifications of medical conditions may also be required, as may reinstatement (fitness-for-duty) certifications.
According to the DOL, in most cases the employee should be told of the need for certification at the time he or she gives notice of the need for FMLA leave, or - if the leave is unforeseen - within two business days after the leave commences. The regulations provide for times when the request may be made later. If at some later point the employer has reason to question the appropriateness or duration of the leave, the employer may request certification then.
When an employer requests that the certification of an HCP be submitted, it is also required to advise the employee of the consequences of failure to satisfy this requirement. In addition, if the submitted certification appears to be deficient, the regulations require that the employer provide the employee with a reasonable opportunity to cure such problems.
There is an important caveat to this certification request and requirement for the use of FMLA leave. If an employer´s paid leave policies apply to the FMLA absence, and that sick leave is being applied to the FMLA absence, the less detailed certification is all the employer can require for the FMLA leave while the two leaves coincide.
Where a request for certification is appropriate, the timing of the certification´s submission differs depending on the nature of leave. If the need for leave is foreseeable and more than 30 days´ notice has been provided, the employee should provide medical certification before the leave begins. Where this is not possible, the certification is to be submitted within the timeframe requested by the employer, which must allow at least 15 calendar days after the request for certification is made. An exception is provided in the rules, however, if "it is not practicable under the particular circumstances to do so despite the employee´s diligent, good faith efforts."
Even allowing for this mandatory 15-day period for submission (and its expansion in some circumstances), required certifications are not always provided. At this point, HR tends to question what options it has. Section 825.311 of the department´s regulations outlines the employer´s rights or responsibilities in these circumstances.
If the failure to submit certification occurs when the need for leave was foreseeable, the employer may delay the FMLA leave until the required certification is provided. In other circumstances, employees are required to meet the employer´s certification deadline (not less than 15 days after request), or provide the certification "as soon as reasonably possible under the particular facts and circumstances," a broad description that likely provides little guidance or comfort to employers.
The provision also states, however, that if the employee never produces the certification, the absence is not FMLA-protected leave. (29 C.F.R. §825.311(c) and §825.312(b)). A DOL opinion letter addressing application of the FMLA expands on this. FMLA-60, issued on May 2, 1995, states: "if the employee is unable to produce the medical certification, the leave is not FMLA leave and the employee is not protected by the act." (See App. IV of the Handbook for the text of FMLA-60.)
Thus, when an employee fails to satisfy certification requirements, DOL´s position is clear: the individual may lack the right to 12 weeks of job-protected leave, health benefits continuation and reinstatement to the same or an equivalent position.
While one might assume that few employees would knowingly risk the loss of the statute´s protections - and, potentially, their jobs - by failing to submit a required certification of a serious health condition where one really is present, this does occur. Nonetheless, an employer that is thinking about terminating the employment relationship because of the employee´s unprotected absence has to do a quick and accurate assessment of its own conduct in the matter. If the employer has not dotted all its "i´s" and crossed all its "t´s" it should proceed cautiously here.
The employer must also consider its communications and compliance with FMLA notice requirements, the potential application of the organization´s paid leave rights and policies or the relevant workers´ compensation law (in the case of a job-related condition), and whether disability rights statutes provide some further insulation or protections to the employee that must be considered.
While those alternative sources of employee protections may also have requirements that the employee has failed to satisfy, an assessment of the complete picture and range of potential exposure or liability is advisable before taking the adverse action that the FMLA regulations appear to insulate, assuming all the appropriate boxes have been checked.
Medical certifications for FMLA leave is discussed in more depth in the Family and Medical Leave Handbook published by Thompson Publishing Group. More information on the Handbook is available at www.Thompsom.com.