Thanks to those who attended my webinar last week with Matt Morris on “Conquering the FMLA Medical Certification Process: Best Practices for Employers.”
We covered a whole host of topics during the webinar: How does an employer handle an employee who does not return medical certification? Or one that is vague and ambiguous? How should an employer respond to an employee who appears to be abusing FMLA leave (e.g., another employee rats him out, or the employee takes FMLA leave after a denied vacation request)? How should an employer certify patterns of absenteeism or occasions when the employee’s absences exceed the frequency or duration on the certification?
- How should an Employer respond when an employee does not return medical certification? The regulations tell us that employers can delay or deny leave if an employee does not return medical certification within 15 days. But should we automatically deny leave? As I explained in the webinar, communication is key: ideally, you should have a “tickler” in your system reminding you of certification deadlines so that you know when certification is due. If certification is not returned, the best practice is to call the employee and follow up with a letter informing them of their oversight and giving them a new deadline to return the certification. (Make it a fairly tight one — I typically recommend seven days.) Also give the employee an opportunity to explain whether he/she has acted diligently and in good faith to obtain certification, leaving room for an explanation as to why the employee didn’t turn it in on time. In in the webinar and in this previous blog post, I provided some insight on the kinds of questions you can ask the employee to determine whether they have been diligent in obtaining certification.
- What if the employee’s absences exceed the frequency or duration indicated on the medical certification form? As we discussed during our session, recertification is available if the employee’s absences substantially exceeds the estimate provided in the certification. As I highlighted in a previous blog post, an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule. Employers must be careful not to seek recertification when the employee simply ticks past the absence estimate. The webinar covers this issue in great detail.
- When you are clarifying certification, how far can you push the health care provider for information? As we discussed, the key is to clarify, not challenge. So, the focus should be questions such as: “We want to understand what you meant by “as needed” and whether the condition affects [employee] from doing her job” OR “”Would you provide a better estimate than “leave as needed” and would you provide detail on why the condition makes it medically necessary for [employee] to miss work”?
Finally, as you may recall during the webinar, I made reference to an FMLA guide published by the U.S. Department of Labor that I believe is of value to employers when discussing with an employee their obligations under the FMLA. You can access the Guide here (pdf). What I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process. HR professionals and attorneys have mentioned to me that they have found the Guide useful in their discussions with employees largely for this reason.
Thanks again to those who attended the webinar. I look forward to your continued feedback on the issues we discussed.