Here’s the scenario: Bob is your Marketing Manager and has worked for your company full-time for the last 12 years. Bob recently learned that he needs to have knee surgery and informs you that he will need to miss 6 weeks of work while he recovers. You issue Bob a Notice of Eligibility under the Family and Medical Leave Act as well as a Medical Certification Form. You provide Bob 15 days to return the Medical Certification to certify his leave. Fifteen days go by, and neither Bob, nor his Medical Certification, are anywhere to be found. Bob has left for his surgery, and never returned his FMLA Paperwork to you.
What’s an employer to do?
You have two options here: First, the FMLA’s regulations are clear that if an employee never returns a medical certification after one has been requested by the employer, “the leave is not FMLA leave.” 29 C.F.R. 825.313(b). You should give Bob a second chance by sending him a follow-up letter and allowing him some extra time (say, an additional 10 days) to return the Medical Certification. Your letter should also inform Bob that if he fails to return the form, his FMLA leave will not be approved, and his absences may subject him to adverse consequences, including termination. If he still doesn’t return the form and his absences are unexcused, you can consider terminating his employment for excessive unexcused absenteeism.
There is also a second option. So long as the employer has sufficient information to be sure that Bob’s requested leave is for a qualifying medical condition, the employer may designate the FMLA leave without a returned medical form. Thus, if you have enough facts to establish that Bob actually had knee surgery, you may designate the leave automatically. Simply put, if Bob has provided you with enough information for you to conclude that his absences are due to a qualifying medical condition, you can designate the leave, even if he doesn’t return the medical form.
Generally speaking, if you issue an employee FMLA paperwork and the employee refuses to return certification paperwork to you, you’ll want to address this noncompliance under Option 1, above. But there are certainly circumstances where it will benefit you to have Option 2 available. For example, if an employee suffers a worker’s compensation injury, and is on leave to recover from that injury, you may take pause at terminating their employment for noncompliance – that termination could create exposure for retaliation under your state’s worker’s compensation statutes. However, you also want to ensure that the employee does not retain their leave allocation while out for a serious medical condition. In such a case, designating the leave in the absence of the Medical Certification may be the safest route. But always be sure you have sufficient information to establish that the leave is due to a serious health condition before you go with Option 2 – failure to do so could expose you to a claim of FMLA Interference.
