What should an employer do if FMLA paperwork is late?

FMLA statutes and regulations can boggle the mind of even an experienced leave and benefits administrator, which is why many employers outsource to a third-party administrator. So, what should you review when staying up to date on all things FMLA?

Here’s the list: 

• In-depth familiarity with the Department of Labor’s (DOL) Employer’s Handbook 
• Current case law 
• DOL opinion letters 
• Contact with the DOL when needed, for clarification on FMLA processes and paperwork 

For the purposes of this blog article, let’s narrow the scope to late FMLA paperwork. If you read Guardian’s Absence Management Blog regularly, you’re likely are aware that paperwork is due no sooner than 15 calendar days from the day the employee requests leave. Once you send out that request for certification, there will be three possible scenarios.

Scenario 1: The employee returns the completed and sufficient paperwork within the 15-day window.

Scenario two: The employee never returns paperwork.

Scenario three: The paperwork is late but does arrive–eventually.

What happens in this third scenario? Can the request, or part of the request, be denied? If so, which parts should be approved or denied? What if the employer has already denied the leave and/or taken disciplinary action in line with their absence policy? 

FMLA regulations address employee certification requirements in a couple of different sections.  

• 29 C.F.R. § 825.305(b): Provides the timing of when the employer must give notice that certification is required and the time an employee has to return the certification. 
• 29 C.F.R. § 825.305(c): Provides the timing if the paperwork is received, but not complete.  
• 29 C.F.R. § 825.313: This section outlines how to maneuver through the process if the paperwork is late or not received.  
• Section (a): Foreseeable leave – if an employee fails to provide certification as required by § 825.305, then an employer may deny FMLA coverage until the required certification is provided. 
• Section (b): Unforeseeable leave – an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances. 
• Section (c): Recertification – An employee must provide recertification within the time requested by the employer (which must allow at least 15 calendar days after the request) or as soon as practicable under the particular facts and circumstances. If an employee fails to provide a recertification within a reasonable time under the particular facts and circumstances, then the employer may deny continuation of the FMLA leave protections until the employee produces a sufficient recertification. 
• Section (d): Fitness-for-duty certification – When requested by the employer under a uniformly applied policy for similarly situated employees, the employee must provide medical certification, at the time the employee seeks reinstatement at the end of FMLA leave taken for the employee’s serious health condition, that the employee is fit for duty and able to return to work (see § 825.312(a)). If a fitness-for-duty certification is required, the employer must advise the employee of the requirement in the designation notice. If the employer has provided the required notice (see § 825.300(e)), the employer may delay restoration until the certification is provided. If the employee does not provide either a fitness-for-duty certification or request additional FMLA leave, they will no longer be entitled to job reinstatement under the FMLA.  

So, what does it all mean? Here’s a step-by-step example. 

• Day 1: Employee requests and starts a 30-day leave of absence and is informed of the requirement for certification due in 15 days 
• Day 15: No paperwork is received 
• Day 23: Paperwork is received completed and fully supporting the need for FMLA leave 
• Day 30: Last day of leave of absence 

Which days are protected? Which days are not protected? Provided the employer has not terminated the employee prior to day 23, here is the breakdown: 

• Days 1 through 15 are protected and may not be applied toward the absence policy for unexcused absences 
• Days 16 through 22 – Employer has the option to designate these days as FMLA time…or not. The employer can instead choose not to designate these days as FMLA and may apply the days toward the absence policy for unexcused absences.* 
• Days 23 through 30 are protected and may not be applied toward the absence policy for unexcused absences 

*NOTE:   If the employer designates these days as FMLA time, they cannot count against the employee for unexcused absences. 

One more caveat:  the employer must remember that the employee can have more than 15 days to return the certification if there are extenuating circumstances that excused all or part of the delay. 

Whew!
We all know absence administration isn’t easy. That’s why it’s important to know how your administrator resolves difficult scenarios. What kind of expertise do they have? Are they willing to go the extra mile to get the very best and compliant outcome for you? 

Employers should ensure that there are resources for training managers and HR, available support for employees, and defined processes in place to create consistent, compliance understanding of when time can be applied toward the absence policy. Consistent management for all employees is imperative to ensure there is no issue of discrimination. At minimum, an employer can put a significant safety net in place by requiring people managers and HR staff to read and understand how and when disciplinary action is allowable based on your absence policy.