Thursday, March 22, 2012

If the employee doesn’t certify, you need not comply (with FMLA)

In Poling v. Core Molding Technologies (S.D. Ohio 2/9/12), the plaintiff, who suffered from Reflex Sympathetic Dystrophy Syndrome, claimed that his employer interfered with his FMLA rights when it terminated him for excessive absences. Poling’s problem, however, was that he never adequately completed the FMLA medical certification forms his employer had requested. That omission was fatal to his claim. (It probably didn’t help Poling’s cause that he called off from his Lake Erie vacation home.)

If an employee seeks FMLA leave to care for his or her own serious health condition, or that of a covered family member, the statute permits an employer to require a certification by a health care provider to support the leave. At the time the employer requests certification, it must advise the employee of the anticipated consequences of a failure to provide adequate certification. An employee has 15 calendar days to return the requested certification. If the employee fails to provide any certification, the employer may deny the taking of FMLA leave. If an employee returns an incomplete or insufficient certification, the employer must provide the employee seven calendar days to cure the deficiency. The employee’s failure to timely cure also entitles the employer to deny the FMLA leave.

The employer in Poling:

  • Requested certification in writing the day after Poling’s absence.
  • Told Poling in writing that “[a]ny absences not qualifying as FMLA will be subject to and recorded according to the attendance policy."
  • Gave Poling 15 days to return the certification.
  • Provided Poling a second chance when he missed the first 15-day deadline.
  • Offered an additional seven days for Poling to cure his late-submitted, deficient certification.

It was only after Poling missed the deadline to cure his certification that the employer finally had enough and terminated him (he had already exhausted his paid and unpaid days off).

There is no doubt that the FMLA is a pain for employers to administer. It is not, however, a toothless statute for employers. The FMLA offers employer plenty of opportunities to catch a malingering employee, provided that you know, understand, and follow its maze of rules.