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Apr 17, 2017

Don't FMLA Leave Me and Other Vexing Issues

Category: Employment

In our last article, we talked about the barrage of paperwork required for family medical leaves and the relatively quick turnaround times required. What happens when some of that paperwork is not returned or provided? For example, let's say the employee decides to decline FMLA leave or just doesn't return any required certification form. There has been lot of discussion on-line about designation of FMLA and what happens if an employee declines FMLA and asks for some other leave first, saving the FMLA for later. As an employer, setting up a scenario where an employee is out for leave after leave is not a good one for running a business. You do want to accommodate employee needs for medical treatment but you also need a certain number of people doing certain jobs and it takes time to train each one. So what do you do?
There was a helpful article posted on a site called FMLA Insights that I thought was particularly well balanced between the camps that say not to designate unless the employee wants it and those that say designate it no matter what. Here is an excerpt from that article:
"Here, you have two options:
  1. Deny FMLA leave. If the employee has not returned complete and adequate medical certification within 15 calendar days, and he has not engaged in any good faith efforts to return it, you have the right to deny FMLA leave and subject the employee to your attendance policy, which often will treat the absence as unexcused. 
  2. Designate the absence as FMLA leave. For some employers, denying FMLA leave above will not result in an unexcused absence because the employee simply can use accrued paid leave without any consequence. For other employers, they simply want to start the FMLA clock running so that the employee exhausts FMLA leave as quickly as possible and return to work..
If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee's need for leave, the employer may provide the employee with the designation notice at that time.  29 C.F.R. 825.300(d)(2) Simply put, you do not need medical certification in your hand to designate leave. As the regulations state, if you have enough facts based on the employee's notice to establish that the employee requires leave that is covered by the FMLA, you can designate it as such. No other questions asked or information needed. Notably, under 29 C.F.R. 825.305(b), you can always ask for certification later 'if the employer later has reason to question the appropriateness of the leave or its duration.'" 
The good news is that this scenario does not happen often because most employees want the job protection offered by FMLA. You do need to assess whether the employee may be entitled to a reasonable accommodation for a disability under the ADA or MHRA or leave under the employer's own policies. And you should only designate time out as FMLA leave (despite an employee saying otherwise or not handing in the paperwork) if you are quite confident that the reason for the leave falls under one of the FMLA protected categories.
What do the current regulations say about this? They say that the employer must designate leave as FMLA-qualifying when it has "enough information to determine whether leave is being taken for a FMLA-qualifying reason." 29 C.F.R. §825.300(d)(1). That notification must tell the employee whether or not the leave will be designated as covered by the FMLA (protects the employee but also starts using up that 10 or 12 weeks the employee gets under state and federal law respectively). And that notice must be given in 5 days once the employer has "enough information." If there is a dispute about whether the leave should fall under the FMLA, "it should be resolved through discussions between the employee and the employer." 29 C.F.R. §825.301(c). The regulations require that such discussions be documented but everyone should know by now from these articles that the cardinal rule of the HR jungle is to document, document, document.
What if you learn that a supervisor knew of some illness that an employee had, or a comp injury, and didn't notify the employee that their time out might or did qualify under FMLA? Are you going to get sued now for not providing the notice that the employee qualified and asking for the certification? Not likely, especially if you retroactively designate, which the regulations allow. 29 C.F.R. §825.301(d). An employer and employee can agree to the retroactive designation or the employer can send out the notice designating the leave as covered as long as "the employer's failure to timely designate leave does not cause harm or injury to the employee."
What does this mean? Well, SHRM has an article on precisely that topic (and on a wealth of other topics as well). As that article put it:
So what exactly does it mean for an employer to cause harm or injury to an employee by failing to provide notice of FMLA designation? The FMLA regulations provide an example. The example describes a situation where an employee uses leave to care for a child with a serious health condition. Because the employer failed to provide notice that the employer considered this leave to be FMLA, the employee was unable to use FMLA leave at a later date to care for a spouse with an upcoming surgery. The employee might establish that harm had occurred by showing that he or she would have arranged for an alternative caregiver for the seriously ill child if the leave had been designated in a timely fashion.
The federal Department of Labor, which will be speaking at the next Central Maine Human Resources Association breakfast meeting on April 18 (, also has guidance on this topic and provided this example:
Henry plans to take 12 weeks of FMLA leave beginning in August for the birth of his second child. Earlier in the leave year, however, Henry took two weeks of annual leave to care for his mother following her hospitalization for a serious health condition. Henry's employer failed to notify him at the time of his mother's hospitalization that the time he spent caring for his mother would be counted as FMLA leave. If Henry can establish that he would have made other arrangements for the care of his mother if he had known that the time would be counted against his FMLA entitlement, the two weeks his employer failed to appropriately designate may not count against his FMLA entitlement.
. You do want to deal with the designation issue as soon as you discover it because you don't want an employee to later claim that they should have been told of their right to have job-protected leave. At the same time, if you want to designate time as covered by the FMLA so it starts using up that 10 or 12 weeks, the employee really needs to know that, as the examples above illustrate.
Finally, at the risk of this being a long article, one more heads-up based on experience that this warning is needed: fitness for duty certifications under the FMLA are limited so don't just send employees off to your third party provider for the usual certification without thinking about whether you can. You can seek a fitness for duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave. 29 C.F.R. §825.312(b). You must provide the employee with a list of the essential functions of their job. The employer (you) may contact the employee's doctor only for the purpose of clarifying and authenticating the fitness-for-duty certification. You may not delay the employee's return to work while contact with the health care provider is being made. No second or third opinions on a fitness for duty certification may be required. 29 C.F.R. §825.312(b). Repeat: no second or third opinions on a fitness for duty certification may be required. 

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.