Calculating FMLA protected leave with a late certification requires flexibility
Posted August 3, 2017
For purposes of trying to determine whether an absence qualifies for protections under the Family and Medical Leave Act (FMLA), certifications are usually the source for the information behind that decision. Not only is the information important, but also the timing regarding when you receive that information.
For example, Jane Employee had 15 days to provide you with a certification, but it took her 20 days. Because of the delay in returning the certification (there were no extenuating circumstances), you want to count all 20 days against her attendance points, per your company policy.
Not so fast, says the Department of Labor (DOL).
The preamble to the 2009 rules indicates that the DOL:
“…disagrees that, where employees fail to provide timely certification, employers would be able to deny FMLA protection for the entire period from the request for certification until such time as the certification is provided.”
A certification is not untimely until the 15-day period has ended, therefore, until those 15 days are over, the employee has FMLA rights. Those rights for the 15 days do not disappear even if the certification is late. Jane Employee is protected during the 15-day period, and you may not apply your company policies to the absence during those 15 days.
Assuming the certification does support the taking of FMLA leave, you count those first 15 days as FMLA leave. If, like Jane Employee, the certification was five days late, those five days are not FMLA-protected, and you may apply your company policies to them.
After the certification is received, however, the leave going forward would be FMLA-protected. You may choose to count all the time taken as FMLA leave, including the days between the end of the 15-day period and when the certification is provided.
Employers are not entitled to deny FMLA protection for an entire period from the request for certification until such time as the certification is provided. Employees must have at least 15 days to provide a certification. Therefore, an employee’s certification is not untimely until that 15-day period has passed.
Here's an illustration to help:
From 7/26 through 8/15 the employee’s leave is FMLA protected. It is not, however, protected during those seven days between 8/15 and 8/22. If the certification supports the leave, the leave taken after 8/22 would again be protected.
If there are extenuating circumstances hindering the employee from returning a certification within 15 days, you need to be flexible. Sometimes, doctors go on vacation and are not available to complete certifications. Sometimes an employee is incapable of asking a doctor to complete a certification. If, however, the employee is just being lazy and not even working to get a certification complete, you may apply your policies.
J. J. Keller's FMLA for Supervisors Training gives supervisors and managers critical Family and Medical Leave Act information.
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