Ever have FMLA certification questions?

Posted September 11, 2020

Emma Employee asks for time off for her own condition. You provide the eligibility/rights & responsibilities notice and include a certification form. You inform Emma that you need the certification form filled out and returned to you within 15 days. Emma meets your request. All is right in the FMLA world.

Of course, this is fiction for most employers. At least every now and then, an employee will not return a requested certification within 15 days or will give you a certification that is missing some information, or perhaps, an employee simply doesn’t want to go to the trouble of having one completed. Other variations on this theme might also be in play. Because the FMLA involves humans in their private affairs, it is ripe for, shall we say, interesting situations.

Because the certification is often the focus of many questions, we will address some of the more common ones.

Q: What can we do if an employee does not return a certification within 15 days?

A: Assuming the delay is due to extenuating circumstances, you would allow the employee more time to provide the certification. If the delay is not justified, after the 15-day window allowed to provide it, you may delay or deny FMLA protections until a certification is provided. If a certification is never provided, the leave is not FMLA leave.

Q: Are those 15 days calendar or business days?

A: Calendar days.

Q: If a doctor charges a fee for completing a certification, does the employer need to pay the fee?

A: No, the fee is an issue to be settled between the doctor and the patient.

Q: What if a certification is incomplete?

A: You must advise the employee if the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. You must state in writing what additional information is necessary to make the certification complete and sufficient and allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under the particular circumstances despite the employee’s diligent good faith efforts.

Q: Do we need to use the DOL’s certification forms?

A: No. You are not required to use the DOL’s forms. Many employers do, however. You need not use the most current versions, either. The expiration date is an intra-government date. You might find the latest versions a bit clearer. You are not mandated to request certifications at all, but they sure come in handy!

Q: May we require a certification supporting the need for leave under the FFCRA?

A: You man — and should — ask for certain information regarding FFCRA leave, and this information may be put together on a form of some sort, but it likely won’t look like the traditional FMLA certifications.

If you have other questions, about certifications or another part of the FMLA, feel free to submit them in the Personal Assistant tool!

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.