Can an Employer Lawfully Terminate for Not Returning FMLA Certification?

The following article first appeared on Littler Mendelson P.C.’s FMLA Insights. It is reposted here with permission. 

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Your employee, Johnny, is one of your poor performers. Upon receiving his latest written warning, he requests a leave of absence due to anxiety from working in a hostile work environment.

Tell me you’ve seen this one before.

Apparently, Johnny’s boss was guilty of being too direct. 

The next day, Johnny texts in a note from his physician indicating that he is being treated for “anxiety for work-induced stress” and “would be unable to return to work.”

For good measure, Johnny later files a worker’s compensation claim because the anxiety is “work” induced.

Ay de mi.

With a raised eyebrow over Johnny’s latest maneuver, you play by the rules.

You have a decision to make. Either you lay the groundwork for discipline/termination or you decide to wait it out.

Since Johnny has effectively put you on notice of the possible need for FMLA leave, you issue a Notice of Eligibility and a medical certification form, which must be completed by his health care provider. 

Fifteen calendar days come and go, and Johnny fails to return the medical certification. No shocker there. 

Since you’re willing to give Johnny the benefit of the doubt, you reach out by phone and remind him of the need to submit certification, and you give him another seven days to do so. 

Johnny never responds and fails to return the certification even within the seven-day grace period.

What Can We Do with Johnny?

As I outline below, you have a decision to make. Either you lay the groundwork for discipline/termination or you decide to wait it out, choosing instead to designate as much time as possible as FMLA leave.

OPTION #1: Can We Discipline or Perhaps Even Terminate Johnny? Some of you would like to take a hard line on these things, and you’re looking for a path to discipline or terminate Johnny’s employment.

I can’t blame you. After all, Johnny clearly is a poor performer, and his non-responsiveness is the latest concern.

Let’s start with the FMLA rules.

Johnny’s obligation to return medical certification is clear.

“The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.”  29 C.F.R. § 825.305(b)

The regulations tell us that any day following day 15 can be counted as unexcused absences until the employee provides sufficient certification. 

The regulations even provide an example.

“… if an employee has 15 days to provide a certification and does not provide the certification for 45 days without sufficient reason for the delay, the employer can deny FMLA protections for the 30-day period following the expiration of the 15-day time period, if the employee takes leave during such period.”

If Johnny does not provide certification, the FMLA regulations allow you to deny his FMLA leave until he provides certification.  

If Johnny does not provide certification (remember, it’s 15 days from the day he receives the blank certification from you), the FMLA regulations allow you to deny his FMLA leave until he provides certification.  

Keep in mind, as a result of the quirky rule above, discipline cannot be issued for days one through 15. These first 15 days are effectively freebie days and cannot be held against Johnny unless he never returns certification. 

For days 16 and after, however, these absences are unexcused and could subject Johnny to termination.

But Before You Hit the Termination Button, Consider This . . . 

Give the Employee Some Grace

We’re not out to terminate our employee, right? After all, it’s often not terribly efficient to terminate an employee and onboard a replacement.

Before taking any adverse action based on Johnny’s failure to return medical certification, we should consider communicating with Johnny about returning the form and determine whether he has a good reason why he has not returned the form within the 15-day deadline.

As a best practice in addressing an employee who has not returned certification by day 15, consider sending a letter to the employee reminding him of his failure to return the form within the allotted time and that you expect to receive the form within “x” number of days.  

I typically recommend seven additional days (but not a whole lot more than that). The letter also should explicitly require the employee to explain why he was not able to meet the 15-day deadline and invite the employee to communicate with you if he needs assistance with this process. (Remember: “How can I help you?” can go a long way …)

If the employee does not return the certification within the grace period, you are now in a much better position to take action. 

To be clear, you’ve given the employee an initial 15 days, then another seven, and when the employee still fails to respond, I am generally comfortable with discipline or a termination decision. 

After all, the FMLA regulations tell us that, if the employee never returns the certification, “the leave is not FMLA leave.”  29 C.F.R. 825.313(b). 

OPTION #2: Simply Exhaust the Employee’s FMLA Leave. Some of you are reading this and thinking, “Jeff, we’ll never terminate an employee. We just want to exhaust that FMLA bucket of time.”

Got it.

If your goal is to exhaust an employee’s FMLA allotment rather than issue discipline or terminate employment, then offering plenty of grace time is your game. 

When the employee provides certification—whenever that is— ou simply designate all the absences as FMLA leave.

The biggest issue you face is the employee who doesn’t want FMLA leave to apply to his absence, so he simply refuses to provide certification, knowing that you won’t discipline or terminate him for his failure to do so.

All is not lost.

The biggest issue you face is the employee who doesn’t want FMLA leave to apply to his absence, so he simply refuses to provide certification, knowing that you won’t discipline or terminate him.

As you know, you are not required to obtain medical certification to support the need for leave. 

You simply need sufficient facts to establish that the employee’s leave is protected by FMLA. 

And thankfully, the FMLA regulations allow employers to use other documentation—such as short-term disability paperwork, medical updates through the worker’s compensation process, and even the employee’s own representations about his medical condition— o designate FMLA leave. 29 CFR 825.306(c).

The last thing you want to do is ignore the absences, choosing not to designate them. 

In fact, the DOL has made clear that the employer has an obligation to designate FMLA leave whenever an absence is covered by the FMLA, even if the employee (or employer) doesn’t want the FMLA to apply.

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About the author: Jeff Nowak is shareholder at Littler Mendelson P.C. and co-chair of the firm’s Leaves of Absence and Disability Accommodation Practice Group.