Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification?

Here's a real life application of this question: Kimberly Miedema was an employee of Spectrum Catering, and after having claimed she was sexually harassed at work, she sought leave to be treated for post-traumatic stress disorder. Shortly thereafter, her physician sent the employer a note indicating that she was being treated for this condition and "would be unable to return to work yet."

The employer played by the rules. As required under the FMLA regulations, after it was put on notice by Miedema of the possible need for FMLA leave, her employer issued a Notice of Eligibility and a medical certification form, which was to be completed by her health care provider. Fifteen calendar days came and went, and the employee had not returned the certification. Spectrum contacted the employee shortly after the expiration of the 15-day period to remind her of the need to submit certification. However, the employee still did not return the certification.

No Soup for You!

In these situations, where the employee fails to return certification, the regulations clearly state "No Soup for You!" Well, something close, at least: if the employee never returns the certification, according to the regs, "the leave is not FMLA leave." 29 C.F.R. 825.313(b). Here, Miedema suffered the consequences. Because she did not return the medical certification, her employment was properly terminated, despite clear evidence that she otherwise suffered from a serious health condition. As a result, her FMLA interference and retaliation claims were dismissed. Miedema v. Spectrum Catering & Concessions

Interestingly, the court also rejected the employee's argument that she should not have been terminated because the employer did not explicitly tell her in the follow-up letter (after she missed the 15-day deadline) that her employment would be subject to termination for failing to return the certification. The court found no such obligation in "follow-up communications," however, since the employer already had informed her of the consequences when it initially provided the blank certification.

Insights for Employers

Spectrum followed the rules and won. Other employers should follow its lead:

1. Identify a potential FMLA absence at the earliest opportunity and issue the proper FMLA notice and medical certification.
2. When the employee fails to return completed certification within 15 calendar days, send the employee a letter informing them of their oversight and giving them a new deadline to return the certification. (Make it a fairly tight one -- I typically recommend seven days.)
3. Give the employee an opportunity to explain whether he/she has acted diligently and in good faith to obtain certification, leaving room for an explanation as to why the employee didn't turn it in on time.
4. When the employee doesn't cooperate despite your own efforts to seek compliance, know that you have treated the employee fairly and have given him/her every opportunity to comply. At this point, termination of employment often can be an appropriate option.