What Am I Doing Wrong?? Common FMLA Mistakes.

by Jackson Lewis P.C.
Contact

[co-author:

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly seeking FMLA recertification when there is a change in circumstances. 

Generally, an employer may request recertification if an employee requests an extension of FMLA leave, if circumstances described by the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. An employer should notify the employee of the need for recertification, and ask the employee to provide the supporting certification within 15 calendar days. Failing to properly request a recertification when a change in circumstances occurs can result in a claim of FLMA interference.

In Hansen v. Fincantieri Marine Group, LLC, Case No. 13-3391 (7th Cir. Aug 18, 2014), an employee’s doctor estimated the frequency and duration of the employee’s medical flare-ups to be 4 episodes every 6 months, each lasting between 2 and 5 days. When the employee exceeded this estimate, the employer sent the recertification request directly to the doctor without informing the employee of the need for recertification. The recertification completed by the healthcare provider contained what the employer believed to be “errors” and the employer refused to accept the recertification. The employer then counted all absences that exceeded the original estimate against the attendance policy, which resulted in the employee’s termination.

The court took issue with the fact that the employer never gave the employee notice of the need for recertification, and instead sent the certification directly to the doctor. Because the employer did not properly seek recertification, the court considered the employer to have not sought recertification at all. The court found in favor of the employee, stating that an employer needs to seek proper recertification when an employee’s circumstances change; it is not entitled to simply add up what it sees as additional absences, count them under its attendance policy, and terminate the employee.

In Smith v. City of Niles, Case No. 11-2394 (6th Cir. 2012), an employee alleged that the employer engaged in “certification harassment” – repeated requests for certifications that interfered with the employee’s FMLA rights. The employee’s original certification estimated that he would need FMLA leave 1 day every 3 months, but in a 5 month time period, he took 6 days. The employer requested recertification just shy of 6 months from the initial leave. The employer again requested recertification 4 months later, when the employee voiced limitations that were not addressed in his prior certification. The employee took issue with the fact that these multiple requests came within six months of each other. The employer argued that the proximal recertification requests were proper because the employee’s circumstances had changed. The court found that the employer’s recertification requests fell squarely within the rule on changed circumstances, in favor of the employer.

Without careful attention to specific reasons for recertification and the proper process to request recertification, an employer can run afoul of the FMLA. An employer should carefully analyze each request for recertification to be sure it falls within the permissible reasons to request FMLA recertification, and follow the proper process to request recertification.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jackson Lewis P.C. | Attorney Advertising

Written by:

Jackson Lewis P.C.
Contact
more
less

Jackson Lewis P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.