This past Friday, the United States Supreme Court announced that it would consider whether the Defense of Marriage Act (DOMA) unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions.  A Supreme Court decision nullifying DOMA could have wide ranging impacts, including how the Family and Medical Leave Act covers “caring for a spouse.”

Let me explain how.

The FMLA allows eligible employees up to 12 weeks of job-protected leave to care for a spouse who suffers from a serious health condition.  But who is a “spouse”?  As an initial matter, the FMLA regulations (at 29 C.F.R. § 825.122(a)) look to state law to define the term:

Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.

The FMLA’s provisions, however, are further governed under federal law by DOMA, which very clearly states that:

. . . the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

So, even if a state allows same-sex marriage, DOMA does not recognize the union.  As a result, employees who are in same-sex marriages can lawfully be denied FMLA leave to care for their spouses.  Many states have adopted broader versions of the FMLA so as to provide leave to care for a same-sex spouse or civil partner.  The problem for employers in these states, however, is that leave that is not FMLA qualified cannot be counted against an employee’s FMLA entitlement.

Let’s use an example: if an employee is allowed 12 weeks of leave under company policy to care for his same-sex spouse, but later needs an additional 12 weeks of leave for a health condition that qualifies for FMLA leave,  the employer must grant his request for FMLA leave because the FMLA tells us that the initial 12 weeks he took to care for his same-sex spouse did not qualify as FMLA leave and therefore did not exhaust his FMLA leave entitlement.

If the Supreme Court rules that DOMA violates the right to legal equality for same-sex couples who are legally married under state laws where they live, then the FMLA arguably would provide leave for employees to care for same-sex spouses — at least in states where same-sex marriage is legal.

Insights for Employers

As I have noted in previous posts, the number of employers who voluntarily are providing leave to domestic partners and same-sex spouses is increasing among Fortune 500 companies and leading business.

Before we obtain (possible) guidance from the Supreme Court (expected in June 2013), keep the following in mind: if your leave policies provide employees time off to care for a domestic/civil union partner or same-sex spouse, employers cannot count this leave under the employee’s 12-week FMLA allotment, since the FMLA does not recognize these relationships.  To ensure that you are not inadvertently setting yourself up for an FMLA interference claim when providing leave to an employee to care for a domestic/civil union partner or same-sex spouse, we recommend that employers contact their employment counsel for guidance to ensure that their leave policies are legally sound.

shoppingphoto2.jpgReports on the street indicate that people literally are lining up and begging for the last seat for a complimentary FMLA webinar I am hosting this Thursday, December 6.  (See right.)  The good thing is that, as subscribers to our blog, you and your colleagues still can sign up.  (See details below.)  I hope you can join us.  I can’t imagine anything more exciting this holiday season, and I am sure you agree!  [Insert sarcastic reply here.]

FMLA Made Easy: Effectively Managing Difficult FMLA Issues

Thursday, December 6, 2012 (12:00 – 1:30p.m. CST)

Overview of the Webinar

Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job.  Moreover, intermittent leave is the “single most serious area of friction between employers and employees seeking to use FMLA leave,” according to a recent Department of Labor report.

But why must it be so difficult?

In this complimentary webinar, Matt Morris, vice president at FMLASource, Tamika Lynch, counsel at Siemens Industry, Inc., and I will tackle some of the most common FMLA conundrums and offer practical advice to employers in addressing these situations.  Using real life situations from their own wealth of experience dealing with the FMLA, our presenters will cover topics such as:

  • Unique issues when caring for an adult child or a family member
  • Responding to inadequate or incomplete medical certification (or one that’s never turned in!)
  • Recertifications: what employers can ask for when circumstances have changed or the validity of leave is in doubt
  • Fluctuating work weeks and its impact on an employee’s FMLA allotment
  • “Honest Belief/Honest Suspicion” cases: taking action against FMLA abuse
  • Managing the second opinion process
  • ADA meets the FMLA: what employers should do when an employee’s FMLA leave is exhausted and he/she still can’t return to work

vote ABA blawg 2012.jpgWe are pleased to announce that our little FMLA blog has been selected for the second year in a row by the ABA Journal as one of the Top 100 Legal Blogs of 2012!  In its 6th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name us among only six labor and employment blogs receiving this honor.

In naming us to this elite group, the ABA Journal shared the following about our blog:

Is time spent filling your prescription at Walgreens covered by the Family and Medical Leave Act?  Is leave beyond FMLA an “undue hardship” under the Americans with Disabilities Act? For employers with FMLA concerns, this blog is the place to go.  Blogger Jeff Nowak provides nuanced commentary on typical and not-so-typical employment conundrums.

Now, the real work begins!  If you enjoy our blog, please take a few seconds to vote for FMLA Insights as the very TOP blog of the Top 100.  (Seriously, it literally takes seconds to vote.)  Complete a simple registration form and vote for us here.

As always, thanks for your support of our blog, and a special thanks to all our readers who nominated us for this prestigious award.  If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other five employment blogs who made the list — they definitely are worth the read…and your vote:  Daniel Schwartz’s Connecticut Employment Law Blog, Molly DiBianca’s Delaware Employment Law Blog, Jon Hyman’s Ohio Employer’s Law Blog, Philip Miles’ Lawffice Space and Donna Ballman’s “Screw You Guys, I’m Going Home” blog.

vegas

The FMLA just got a whole lot broader.

In what might be one of the key FMLA decisions of the year, a federal judge has upheld an employee’s right to take FMLA leave to care for her mother during a recreational trip to Las Vegas.

Yep . . . you read it correctly.  Employee + her mother + their trip together to Vegas = FMLA leave

The Facts

The story isn’t all that complicated.  Beverly Ballard was a private swimming lessons instructor.  She also had a mother who was diagnosed with end-stage congestive heart failure and was not expected to live.  Beverly was the primary care giver for her mom: she was responsible for preparing her meals; administering her mom’s insulin shots and medicine; operating a pump to remove fluids from her mom’s heart; bathing her mom; providing her transportation and ensuring she made it back and forth to and from her bed.

Beverly later learned that a local charitable organization had granted her mother a “make a wish” trip to Las Vegas because she was terminally ill.  According to Beverly, the six-day trip would require her own absence from work because she would need to care for her mom during the trip.  Beverly’s employer denied her request for leave, but Beverly went anyway.  In addition to administering her mom’s medicine and generally looking after her while in Vegas, Beverly also “spent time with her mother playing slots, shopping on the strip, people-watching, and dining at restaurants.”  Beverly fully acknowledged that her mom was not heading to Vegas for medical care, therapy or any kind of treatment.  Put simply, it was a vacation exclusively for her mom.

Beverly’s employment was terminated for unauthorized absences.  She later filed suit, alleging that her employer interfered with her ability to take FMLA leave.

An FMLA Conundrum

We’ve grown used to courts dismissing these kinds of cases.  Recall the Tayag case, where the court dismissed an FMLA lawsuit because the employee’s trip with her seriously ill husband to meet with a “faith healer” in the Philippines also was spent visiting socially with family.  By and large, courts tend to dismiss FMLA lawsuits where the family member for whom the employee is caring is not seeking treatment at the remote destination.

That said, I have been worried about a case like Beverly’s.  Not necessarily the Vegas part (but these facts don’t help).  I’ve been worried that a court actually would allow an employee to travel on a recreational trip to care for a family member.  The cynical side of me frets over the proverbial flood gates opening to allow any FMLA abuser to scam FMLA leave simply by taking mom on their next trip to Disney World or to climb Mt. Kilimanjaro.

But the court reviewing Beverly’s situation bucked the authority preceding it, finding that it didn’t matter where Beverly was providing the care — so long as she was providing it.   (Read the court’s decision here.)

Do you know what bothers me the most about this decision?  That I can’t necessarily disagree with it.  Many courts before this one have read into the FMLA an obligation that treatment be part of any trip that requires travel away from home.  Yet, as this court pointed out, the FMLA only requires that Beverly seek leave to “care for” her mom, who had a “serious health condition.”  Here’s the imporant part of the court’s written opinion:

There is no question that [Beverly’s mom] suffered from a covered “serious health condition,” and was unable to care for her own basic medical, hygienic, or nutritional needs or safety.  There is also no question that the services [Beverly] provided her mother at home [long list of services] constituted, at the very least, physical care within the meaning of the FMLA.  It follows, then, that Ballard also “cared for” her mother during their trip to Las Vegas because her mother’s basic medical, hygienic, and nutritional needs did not change while she was there . . .

So long as the employee provides “care” to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections.  Accordingly, . . . a reasonable jury could find that [Beverly] “cared for” her mother within the meaning of the FMLA during the time she spent traveling to Las Vegas.

Insights for Employers

Wow.  A case like this one screams out for some DOL guidance on the issue, as employers rightly fear that a decision like this one — as reasoned as it is in this instance — is a “get out of jail free” card for those who abuse FMLA leave.  Until then, employers should keep the following in mind:

  1. In light of the Ballard case, treatment is not required where an employee is obligated to care for a family member with a serious health condition.  So, employers clearly take a risk when they allow FMLA leave only when the trip includes some form of medical care, treatment or therapy.
  2. As a result of this reality, employers must ensure that certification clearly indicates that care by the employee is medically necessary.  If the certification is incomplete or inadequate, use the tools available to you to authenticate and clarify the certification.  Where certification is insufficient, tell your employee precisely what information is missing/insufficient and give them time to cure (at least seven days).  Where they fail to cure the deficiency, consider obtaining their permission to talk directly with their family member’s health care provider to obtain the information.  In this situation, the employee has two choices: either cure the certification or grant permission for the employer to contact the health care provider.  Having the appropriate certification on file will deter would-be FMLA abusers from seeking a quick FMLA fix.
  3. Let the obvious situations go.  Call me squishy here, but when an employee’s mom is terminally ill and she’s seeking leave to care for her while she goes on a “make a wish” trip, let her go and use your time and effort to fight a different battle.

In the meantime, feel free to mutter under your breath, “Serenity now“!

beer_of_the_month.jpgEmployers and fellow FMLA nerds, consider this an early holiday present: Courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.  

This is a longer than usual post, but hang with me, as I share some best practices below.  

Take the situation of Sara Jaszczyszyn.  (We’ll call her Sara, for short.)  Sara worked for Advantage Health Physician Network as a customer service representative where she spent most of her day talking with customers by telephone.  As the result of a car accident several years earlier, Sara experienced back pain, which began to worsen shortly after her employment started. 

Sara first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four “flare ups” per month and that each flare up could last anywhere from a few hours to a few days. When they occurred, Sara could not perform all of her job functions.

After obtaining this certification, Sara took it as carte blanche to remain absent for a continuous, open-ended period of time.  After early September, Sara remained absent.  

While Sara was on FMLA leave, she attended “Pulaski Days,” a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara’s co-workers weren’t amused, since they “were covering for her” (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren’t, several of Sara’s co-workers complained to their boss, who then viewed the Facebook pictures.  

We know how this story ends, right?  Indeed!  Days later, Sara’s employment was terminated.

Sara’s FMLA Claims are Dismissed because the Employer Flawlessly Handled the Situation

After her termination, Sara filed FMLA interference and retaliation claims against Advantage. However, these claims were quickly dismissed.  

Why?  Because the employer responded precisely in the manner it should.  

After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was “completed incapacitated.”  

Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her “complete incapacitation” and the Facebook photos.  Sara’s response?  She “was in pain at the festival and was just not showing it.”  After that excuse failed miserably, her next response was telling.  You guessed it: silence.

Insights for Employers

What must an employer establish when it terminates an employee for FMLA abuse?  That it had an honest belief the employee was engaging in fraud. In other words, it must show that it reasonably relied on the particular facts at issue, even if the employer is later proven to be mistaken in its belief.  An employer effectively advances this defense only when it conducts a complete and exhaustive investigation into the alleged facts.  

Here, Advantage’s investigation served as Defense Exhibit A in dismissing Sara’s FMLA claims because it was able to show that it conducted a complete and exhaustive investigation into the facts at issue. Look above at Advantage’s investigation: it confirmed the scope of Sara’s need for FMLA leave; it asked Sara explain in her own words what her limitations were; it had her acknowledge the importance of combating fraud in the workplace; and then, after obtaining these admissions, it lowered the boom by introducing the Facebook pictures. At that point, did Advantage really even need to inquire further? Sara’s underwhelming response when faced with the pictures was evidence enough. See the court’s opinion in Jaszczyszyn v. Advantage Health Physician Network (pdf) here.

I regularly remind my clients: even when you have have caught an employee red-handed in fraud or inappropriate conduct, there is absolutely no substitute for a complete and exhaustive investigation into the facts.  Why?  Courts and juries insist on it.  It simply is human nature to assume that all employees will be afforded some level of due process — i.e., the chance to respond to the allegations and defend themselves — before a termination decision is made. When employers don’t afford an employee this opportunity, the risk of litigation and an adverse ruling increases significantly.  Follow Advantage’s lead, and set yourself up for a strong defense.

Still interested in how an employer can effectively advance an “honest belief” defense?  We’ll cover this topic head on during our December 6 webinar, which you can register for here.

By now, you’re really interested in seeing Sara’s Facebook pics, aren’t you?  Eric Meyer of the Employer Handbook has them here.

webinar.jpgI’ll admit it: I am longoverdue to host an FMLA webinar for employers.  Wait no more!  I have partnered with two fabulous attorneys — Matt Morris of FMLASource and Tamika Lynch of Siemens Industry — to hit head on a number of FMLA juggernauts that all of us face everyday.

Please join us on December 6, 2012 (12:00 – 1:30p.m. CST) for FMLA Made Easy: Effectively Managing Difficult FMLA Issues.   I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover.  What’s the best part?  It’s FREE!  So, you have no excuse not to join us, right!?!

Overview of the Webinar

Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job.  Moreover, intermittent leave is the “single most serious area of friction between employers and employees seeking to use FMLA leave,” according to a recent Department of Labor report.

But why must it be so difficult?

In this complimentary webinar, Matt Morris, vice president at FMLASource, Tamika Lynch, counsel at Siemens Industry, Inc., and I will tackle some of the most common FMLA conundrums and offer practical advice to employers in addressing these situations.  Using real life situations from their own wealth of experience dealing with the FMLA, our presenters will cover topics such as:

  • Unique issues when caring for an adult child or a family member
  • Responding to inadequate or incomplete medical certification (or one that’s never turned in!)
  • Recertifications: what employers can ask for when circumstances have changed or the validity of leave is in doubt
  • Fluctuating work weeks and its impact on an employee’s FMLA allotment
  • “Honest Belief/Honest Suspicion” cases: taking action against FMLA abuse
  • Managing the second opinion process
  • ADA meets the FMLA: what employers should do when an employee’s FMLA leave is exhausted and he/she still can’t return to work

 

Thanks for the great feedback we received on our post earlier this week about Hurricane Sandy’s impact on employers when it comes to issues arising under the Family and Medical Leave Act.  In your feedback, I received several requests to address the following question:

If an employer shuts down because of damage related to the Hurricane, and an employee was out on FMLA leave at the time the office closed, is the employee charged FMLA leave for these days?

The FMLA regulations (at 29 CFR § 825.200(h)) clearly state how an employer should calculate FMLA leave when it shuts down its operations:

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.

Thus, the regulations indicate that, if an employer’s business is closed for a week or more because of the natural disaster, the days that the business is shuttered could not count against an employee’s FMLA leave allotment.

Keep in mind: in these situations, you cannot count the time against the employee’s FMLA allotment even if it is obvious the employee would not have been able to perform the duties of the job during the break.

Our thoughts and prayers are with those on the east coast who are attempting to return to some sense of normalcy in the wake of the devastation left behind by Hurricane Sandy.

Natural disasters like Sandy raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered?

The aftermath of the hurricane also raises questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Awhile back, I covered this question, so I refer you that post for a more detailed analysis of an employee’s right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave.

However, it’s worth pointing out again a few general points to consider as we’re confronted with natural disasters like Hurricane Sandy:

  • Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.
  • However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a “serious health condition” and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Some examples might include the following: 1) as a result of the natural disaster, an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee’s parent who suffers from diabetes.  If the event took out power to the parent’s home, the employee may need to help administer the parent’s medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
  • Could the Hurricane actually cause a serious health condition requiring time away from work?  See my answer here.

Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

Dads need lovin’ too.  So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer’s “macho man” culture was a culprit in his ouster.

As I detailed in a previous blog post, Ariel Ayanna was an attorney at a Boston-based law firm.  By all accounts, he had two years of solid performance evaluations and a $30,000 bonus in the year prior to his termination.  Then, he took four weeks of leave to care for his wife after the birth of their child and to bond with his newborn.  (The facts suggest he needed to care for his wife, who suffered from a variety of serious health conditions.)

When Ayanna returned to work, it wasn’t the same.  He claims the firm assigned him less work and ridiculed his care-taking ways.  At the time of his termination, the firm even shared that his “personal” issues constituted one of reasons for his ouster.  Ouch.

In refusing to dismiss Ayanna’s FMLA retaliation claim, the court clung to the statement above, suggesting that a “reasonable jury could find that the comment was directed at Ayanna’s recent need to take FMLA leave.”  Also noted as an inconsistency in the employer’s story: its claim that Ayanna’s low client billable hours also supported his termination.  The problem?  There was evidence that others missed the hours mark, too, and did not suffer the same fate as Ayanna.

In Ayanna’s complaint, he claimed that the firm maintained a “macho culture” where time off to attend to fatherhood and being an “engaged” dad were seen as weak and undesirable.  However, in a nod to the employer, the court bounced this claim, finding that it was too vague to support a sex discrimination claim, which the court dismissed.  Ayanna v. Dechert LLC (pdf)

However, the FMLA retaliation claim now remains for a jury to consider.  The evidence precluding dismissal falls into two usual taboo categories that often trip up an employer when it comes to retaliation claims: insensitive comments that could be viewed as discriminatory and an inconsistent application of discipline to those outside the protected class.

Insights for Employers

As always, there are lessons to be learned by employers.  The court’s decision reminds us of at least two best practices:

  1. As I have stated before, loose lips sinks ships.  If one of the reasons for his termination was indeed his “personal” issues — that is, taking care of his wife with a serious health condition and bonding with his child — it created a tremendous risk of liability for the employer.  Note to managers, supervisors, owners, HR professionals and anyone else in a positive to effect a personnel decision:  Stop saying stupid stuff!  I’ve detailed all too often lately stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made foolish remarks in conjunction with a termination decision.  Don’t do it, and train your managers and supervisors to do the same.  This case serves as yet another example of how easily a court will send a case to a jury as a result of one indiscreet comment.
  2. Apply disciplinary criteria consistently.  If you decide that a performance deficiency is particularly troublesome and requires termination, look around the room before lowering the boom.   Are other employees (especially those who have not recently returned from FMLA leave) guilty of the same problem?  If they were not subject to similar discipline or their situation cannot be distinguished in some meaningful way, employers again create significant risk of liability.  Courts don’t like it, and juries are even less forgiving.

Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification?

Here’s a real life application of this question:  Kimberly Miedema was an employee of Spectrum Catering, and after having claimed she was sexually harassed at work, she sought leave to be treated for post-traumatic stress disorder.  Shortly thereafter, her physician sent the employer a note indicating that she was being treated for this condition and “would be unable to return to work yet.”

The employer played by the rules.  As required under the FMLA regulations, after it was put on notice by Miedema of the possible need for FMLA leave, her employer issued a Notice of Eligibility and a medical certification form, which was to be completed by her health care provider.  Fifteen calendar days came and went, and the employee had not returned the certification.  Spectrum contacted the employee shortly after the expiration of the 15-day period to remind her of the need to submit certification.  However, the employee still did not return the certification.

No Soup for You!

In these situations, where the employee fails to return certification, the regulations clearly state “No Soup for You!”  Well, something close, at least: if the employee never returns the certification, according to the regs, “the leave is not FMLA leave.”  29 C.F.R. 825.313(b).  Here, Miedema suffered the consequences.  Because she did not return the medical certification, her employment was properly terminated, despite clear evidence that she otherwise suffered from a serious health condition.  As a result, her FMLA interference and retaliation claims were dismissed.  Miedema v. Spectrum Catering & Concessions

Interestingly, the court also rejected the employee’s argument that she should not have been terminated because the employer did not explicitly tell her in the follow-up letter (after she missed the 15-day deadline) that her employment would be subject to termination for failing to return the certification.  The court found no such obligation in “follow-up communications,” however, since the employer already had informed her of the consequences when it initially provided the blank certification.

Insights for Employers

Spectrum followed the rules and won.  Other employers should follow its lead:

  1. Identify a potential FMLA absence at the earliest opportunity and issue the proper FMLA notice and medical certification.
  2. When the employee fails to return completed certification within 15 calendar days, send the employee 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.)
  3. 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.
  4. When the employee doesn’t cooperate despite your own efforts to seek compliance, know that you have treated the employee fairly and have given him/her every opportunity to comply.  At this point, termination of employment often can be an appropriate option.