HR Quick Take: FMLA Medical Certification

Dentons Davis Brown

Davis Brown Law Firm

Q: An employee on FMLA leave has simply not returned her medical certification.  What next?

A: If an employee does not return the required medical certification within 15 calendar days, you can decline to extend FMLA protections and the employee would then be managed under your standard absenteeism policy. But this comes with a big “be careful” warning.  Particularly now, with unpredictable medical resources due to the pandemic, employees may have a hard time getting certifications, especially if the certification is needed from a specialist such as a mental health provider.

In order to manage that risk, you may want to send a follow-up letter giving some additional time to certify and letting the employee know the specific consequences of failing to provide the documentation.  

Also, note that there are some instances where it may be that an employee cannot provide certification because of inpatient treatment such as being on a ventilator or in a locked facility for mental health issues.  In those instances, case law would indicate that if you are aware of those circumstances you need to consider them when applying the rules.

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.

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