by Federal regulations state that an employee seeking leave under the Family and Medical Leave Act (FMLA) due to a serious health condition must provide medical certification of the health condition within fifteen calendar days after the employer requests the certification. If the employee does not provide the certification after fifteen days, the employer has several practical options.
Count the absences as covered under the FMLA: One option is to count the absences as covered under the FMLA. Technically, the employer does not have to require a medical certification before granting FMLA coverage. It can provide FMLA protected leave based on other available facts, such as the employee’s statements in their leave request. In other words, with appropriate notice to the employee, the employer can start subtracting the days missed from the employee’s FMLA bank of time for the year.
Apply the attendance plan: Another option is to apply the terms of the employer’s attendance policy to absences occurring after the first fifteen days following the employer’s request for medical certification. Since the absences are not covered by FMLA protections, the employer may treat the absences as it would other absences. To do this, the employer should notify the employee that it will:
- Deny FMLA leave until the certification is provided; and
- Count the subsequent absences (i.e., those occurring after the fifteen-day period) as unexcused and subject to the terms of the employer’s attendance policy.
Depending upon the terms of the employer’s attendance policy, adherence to the strict interpretation of the regulation could mean that the employee would receive corrective action, up to and including termination. According to the DOL Fact Sheet on FMLA Medical Certifications, linked below,:
Generally, the employee must provide the requested certification to the employer within 15 calendar days a!er the employer’s request. If an employee fails to return the certification in a timely manner, the employer can deny FMLA protections for the leave following the expiration of the 15-calendar day period until a complete and sufficient certification is provided. However, the leave taken during 15-day period and the period of absence beginning the day the complete certification was received is FMLA-protected leave.
When an employee makes diligent, good faith efforts but is still unable to meet the deadline for submission – at least 15-calendar days from the request – the employee is entitled to additional time to provide the certification. In this circumstance, the employer may not deny the leave for the period that the certification was late.
The employer may allow longer than 15 calendar days for certification. In all cases, if the employee never produces the certification, the leave is not FMLA-protected leave.
Providing a grace period before exercising either option: The employee may have a good reason for failing to return a medical certification right away. The employee’s health may affect the ability to get the paperwork to the doctor or the medical provider’s lack of responsiveness can interfere with getting the certification to the employer. Many employers provide a grace period of seven days or longer for an employee who is late with medical certification. By sending the employee an email, letter, or other follow-up reminding the employee of the certification requirement, explaining the potential consequences of failing to provide the certification, and giving a firm date for response, an employer may be able to resolve the issue without resorting to other options.
The U.S. Department of Labor, the federal agency responsible for enforcing the FMLA, provides a factsheet on medical certifications including how to handle delays in getting requested certification: https://www.dol.gov/agencies/whd/fact-sheets/28g-fmla-serious-health-condition.
