BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE
Employers now know that they have to follow FMLA regulations “because I said so!” That was the declaration from Helen Applewhaite, DOL Branch Chief for FMLA, in a moment of levity when I asked why employers had to follow a particular FMLA regulation that I called “nonsensical” and another person called “goofy” (well, we were in Disney territory, after all!).
Last week I was in Orlando for the annual Compliance Conference hosted by the Disability Management Employer Coalition. I had the honor to co-present a plenary session with Helen Applewhaite entitled FMLA Check-Up: Red Flags and DOL Recommendations. After hours of discussion, Helen and I identified 3 categories of issues that the DOL observes employers struggle with: notifications and communications between employers and employees; recertifications; and protection of the employee’s right to FMLA leave. Here is an issue we covered in our presentation:
The late certification rule: Are you familiar with the late cert rule? I know from working with Matrix clients that this rule is often unknown to or misunderstood by employers. Here’s the situation: An employee fails to return his completed Certification of Health Care Provider within the 15 days allowed by the regulations (or longer if allowed by the employer). A certification is ultimately provided that supports the requested leave. Any time off taken for the requested leave reason must be handled by the employer as follows:
- Approve FMLA leave during the 15-day period after the certification was requested
- Approve FMLA leave during the period that begins with the date of receipt of the certification
- Approve or deny FMLA leave during the interim period.
Example: Terry requests FMLA leave to care for his elderly mother who has a serious health condition. On June 1, Terry’s employer (or Matrix!) provides Terry with all the required FMLA notices and information, including Certification of Health Care Provider (CHCP), advising Terry that he must return the CHCP within 15 days (by June 16). Terry immediately starts taking 1-2 days off per week to care for his mother. He does not return the completed CHCP until July 1. The CHCP supports Terry’s usage, saying his mother will need Terry’s care up to 2 days per week. In this scenario:
- Terry’s employer must approve any absences Terry took from June 1 through June 16.
- It must approve any covered absences from July 1 going forward.
- Terry’s employer has the option whether to approve or deny any leave days taken in the
interim period from June 17 through June 30.
The late cert rule is found in the FMLA regulations at 29 C.F.R. § 825.313
Pings for Employers.
As always with the FMLA, there are related issues for consideration by employers:
- Adopt a uniform policy regarding whether or not to approve absences that occur in the interim period. Approaching the decision on a case-by-case basis is not only inefficient, but creates a risk of perceived or actual unfairness or discrimination.
- Before denying any absences in the interim period, be sure to check with the employee as to whether there are extenuating circumstances that excuse the employee’s late certification. The regulation requires this.
- If there are no extenuating circumstances and the employer’s policy is to deny FMLA coverage for the interim absences, then the employer can impose discipline in accordance with its attendance policy for those absences.
- If a certification is never received, the leave is not FMLA protected.
- If the late certification has deficiencies, follow the correct processes with regard to incomplete or insufficient certs (written notice to employee of deficiencies and 7 days to cure) or for authentication or clarification. See FMLA regulations 29 C.F.R. § 825.305(c) and 825.307. If you ultimately get a satisfactory certification, the leave should be approved as of the date the late but deficient cert was received (plus the initial 15 days).
Discipline that has been imposed for absences that appear unexcused because a certification has not yet been received should be rescinded with respect to any now-FMLA-protected absences. The tough question is what to do if the employee has been terminated for unexcused absences and then the late certification comes in. Consult your employment counsel on this one!