Q: We requested that an employee have his health care provider complete FMLA medical certification in conjunction with what appears to be an FMLA-related absence.  The employee has been off work for 30 days and we still have not received certification.  Can we count any of these days as unexcused absences?

A: Before you get to the "unexcused absence" question, employers first should analyze whether the employee has been attempting in good faith to provide medical certification. 

Returning Medical Certification

Pursuant to the FMLA regulations, an employee must return medical certification to the employer within 15 calendar days from receipt of the blank form, "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)  So, before taking any adverse action based on the employee's failure to return medical certification, an employer must closely assess whether it has been in communication with the employee about returning the form and whether the employee has a good reason why he has not returned the form within the time allotted by the regulations. 

As a best practice in addressing an employee who has not returned certification by Day 15, I recommend sending a letter to the employee (immediately upon expiration of Day 15) reminding him of his failure to return the form within the allotted time and that you expect to receive the form within seven days.  The letter also should explicitly 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...)  

What Absences Should Be Unexcused?

Let's now assume that: 1) you have determined that the employee has not acted in good faith to obtain the medical certification; 2) you have sent him a letter at Day 15 about his failure to respond; 3) Day 22 (the extended date after you give him seven more days) has come and gone with no response; 4) you have tried to contact the employee by telephone (which you have documented contemporaneously with the phone call) to remind him of his obligations (because a jury will later want to know that you tried and tried to communicate with him, to no avail!); and 5) you stand at Day 30 (frustrated as heck and now trying to hold back the steam seeping from your ears) and you still have not received any medical certification.

Can you count any of the these days as unexcused absences?  Yes, according to the regulations:

Absent such extenuating circumstances, if the employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided.  29 C.F.R. 825.313(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.

Interestingly, the regulations further state that, if the employee never returns the certification, "the leave is not FMLA leave."  29 C.F.R. 825.313(b).  As I interpret this provision, if the employer never receives certification from the employee, all days missed (from Day 1 on) can be counted against the employee.  (Otherwise, why would the DOL include in the regs this phrase above?)

Hat tip: Matt Morris