HR Management & Compliance

Ask the Expert: Should We Insist on Certification?

We have an employee who missed 6 days of work due to pneumonia. We sent her the FMLA paperwork however she never returned the Certification of Healthcare Provider. She is back and work. Must we insist that she have the Certification completed or can we say that her leave will be denied under FMLA? She had sick time available so was paid for the 6 days.

Your question is one that we receive a lot from subscribers, as medical certification can be a confusing part of FMLA paperwork that many employees, as in your case, often fail or refuse to provide. So let’s break the situation down step-by-step.

First, let’s clarify that employers may, but are not required to request Certification of Healthcare Provider for purposes of FMLA. If you will require certification, then you must let the employee know this (and the consequences – such as denial of leave – for failure to return the certification) in advance. This may (but is not required to) be done by checking the appropriate box on the WH-381 Notice of Eligibility Rights and Responsibilities.

Let’s assume that you did provide the employee with notice that medical certification would be required. The question now is whether or not you should insist upon completion of the certification – even in cases, such as this one, where it may be apparent that the leave did qualify for FMLA. You have a couple of options, here.

One possibility would be to simply waive the certification requirement and decide to designate the leave as FMLA-qualifying if you have enough information (absent the medical certification) to do so. However, there is a caveat, here – keep in mind that selectively applying any workplace policy or documentation requirement could open you up to problems in the future.

In other words, if you consistently require medical certification from all employees, but you make an exception for this one employee this one time, then if you refuse to make an exception for another employee in the future, that future employee may assert a claim of discrimination. So if you have an established practice of consistently requiring medical certification, you may not want to stray from that standard.

Your second option is to insist upon return of the certification or else deny the leave under FMLA. If you choose this option you must give the employee 15 days from the date the notice of rights and responsibilities was provided. If, after 15 days, you have still not received the requested medical certification, then you may officially deny the request for FMLA leave.

As you noted, the employee had sick leave that she used for the time, so as a practical matter denying this leave as FMLA leave may not make much difference (aside from what you fill out on the paperwork).

However, do note that some employers wish to “start the FMLA clock” for qualifying leaves such as this one just as a matter of protecting themselves from being required to provide more than the annual leave allotment. It doesn’t sound as though this would be a concern in your present situation, but it’s helpful to understand that often designating leave as FMLA-qualifying can be beneficial for the employer (even if overlapping sick or other leave is available) since it does reduce the employer’s leave obligation if, unfortunately, the employee ever needs to take an additional, extended leave in the same FMLA calendar year.

If you would like additional guidance on FMLA notice and certification, you may wish to look at this FMLA guidance document on HR.BLR.com.