Labor Day was first formalized as a holiday in 1894 as a way to celebrate workers’ achievements in the height of the Industrial Revolution. Granted, back then many workers, some as young as six years old, worked an average of 12-hours per day, seven days per week. Fast forward a quick 128 years, and managing employee absences may be one of the most time-consuming and complicated activities Human Resource (HR) departments deal with daily. The process involves the employee, supervisors, management, policies, federal laws, state laws, and then there’s the whole keeping the company running thing. Administering leaves can be tricky, and FMLA is among the trickiest.
FMLA statutes and regulations can boggle the mind of even an experienced leave and benefits administrator, which is why many large employers outsource to a third-party administrator. As we are about to take a well-deserved break from laboring, let’s consider if those who do this work for your organization are on top of requirements for employers under the FMLA? What types of information should they be informed about and? Here’s the list:
- In-depth familiarity with the Department of Labor’s (DOL) Employer’s Handbook
- Current case law
- DOL opinion letters
- Contact with the DOL when needed, for clarification on FMLA processes and paperwork
That information alone should be enough to fill your Labor Day weekend, if not the rest of the year. For the purposes of this blog, let’s narrow the scope to late FMLA paperwork. If you read the ReedGroup blog regularly, you know that paperwork is due no sooner than 15 calendar days from the day the employee requests leave. Once you send out that request for certification, there will be three possible scenarios. First, and hopefully most of the time, the employee returns the completed and sufficient paperwork within the 15-day window. Second, the employee never returns paperwork. Third, and most inconvenient, the paperwork is late, but does arrive–eventually. What happens in this third scenario? Can the request, or part of the request, be denied? If so, which parts should be approved or denied? What if the employer has already denied the leave and/or taken disciplinary action in line with their absence policy?
Analysis: Which Regulations Apply, And What An Employer Should Do
FMLA regulations address employee certification requirements in a couple of different sections.
- 29 C.F.R. § 825.305(b): Provides the timing of when the employer must give notice that certification is required and the time an employee has to return the certification.
- 29 C.F.R. § 825.305(c): Provides the timing if the paperwork is received, but not complete.
- 29 C.F.R. § 825.313: This section outlines how to maneuver through the process if the paperwork is late or not received.
- Section (a): Foreseeable leave – if an employee fails to provide certification as required by § 825.305, then an employer may deny FMLA coverage until the required certification is provided.
- Section (b): Unforeseeable leave – an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances.
- Section (c): Recertification – An employee must provide recertification within the time requested by the employer (which must allow at least 15 calendar days after the request) or as soon as practicable under the particular facts and circumstances. If an employee fails to provide a recertification within a reasonable time under the particular facts and circumstances, then the employer may deny continuation of the FMLA leave protections until the employee produces a sufficient recertification.
- Section (d): Fitness-for-duty certification – When requested by the employer under a uniformly applied policy for similarly situated employees, the employee must provide medical certification, at the time the employee seeks reinstatement at the end of FMLA leave taken for the employee’s serious health condition, that the employee is fit for duty and able to return to work (see § 825.312(a)). If a fitness-for-duty certification is required, the employer must advise the employee of the requirement in the designation notice. If the employer has provided the required notice (see § 825.300(e)), the employer may delay restoration until the certification is provided. If the employee does not provide either a fitness-for-duty certification or request additional FMLA leave, they will no longer be entitled to job reinstatement under the FMLA.
What Happens When Paperwork Is Late?
We previously spoke with a Senior Advisor at the DOL’s FMLA branch in Washington, D.C., to discuss their enforcement of these FMLA regs. She referred us to the preamble to the 2008/2009 FMLA regulations, which states:
The Department believes that § 825.311 as proposed (§ 825.313 in the final rule) is clear as to the consequences of an employee’s failure to provide timely certification or recertification. Any absences that occur during the period in which an employer has the right to deny FMLA protection due to the failure to provide timely certification may be treated under the employer’s normal attendance policies. The Department disagrees that, where employees fail to provide timely certification, employers should be able to deny FMLA protection for the entire period from the request for certification until such time as the certification is provided. Employees must be provided at least 15 calendar days to provide the requested certification, and are entitled to additional time when they are unable to meet that deadline despite their diligent, good-faith efforts. The Department expects that in all cases employees will communicate to their employers the efforts they are making to secure the completed medical certifications. See §§ 825.305(b) and 825.308(d). Accordingly, an employee’s certification (or recertification) is not untimely until that period has passed, as the regulation indicates. Finally, the Department notes that § 825.313 permits employers to deny FMLA protection when an employee fails to provide a timely certification or recertification, but it does not require employers to do so. Employers always have the option of accepting an untimely certification and not denying FMLA protection to any absences that occurred during the period in which the certification was delayed.
How This Would Work in Practice: Administering an FMLA Leave Where Paperwork Was Late
So what does it all mean? Here’s a step-by-step example.
- Day 1: Employee requests and starts a 30-day leave of absence and is informed of the requirement for certification due in 15 days
- Day 15: No paperwork is received
- Day 23: Paperwork is received completed and fully supporting the need for FMLA leave
- Day 30: Last day of leave of absence
Which days are protected? Which days are not protected? Provided the employer has not terminated the employee prior to day 23, here is the breakdown:
- Days 1 through 15 are protected and may not be applied toward the absence policy for unexcused absences
- Days 16 through 22 – Employer has the option to designate these days as FMLA time…or not. The employer can instead choose not to designate these days as FMLA and may apply the days toward the absence policy for unexcused absences.*
- Days 23 through 30 are protected and may not be applied toward the absence policy for unexcused absences
*NOTE: If the employer designates these days as FMLA time, they cannot count against the employee for unexcused absences.
One more caveat: the employer must remember that the employee can have more than 15 days to return the certification if there are extenuating circumstances that excused all or part of the delay.
We all know absence administration isn’t easy. That’s why it’s important to know how your administrator resolves difficult scenarios. What kind of expertise do they have? Are they willing to go the extra mile to get the very best and compliant outcome for you?
What Employers Should Do
Employers should ensure that there are resources for training managers and HR, available support for employees, and defined processes in place to create consistent, compliance understanding of when time can be applied toward the absence policy. Consistent management for all employees is imperative to ensure there is no issue of discrimination. At minimum, an employer can put a significant safety net in place by requiring people managers and HR staff to read and understand how and when disciplinary action is allowable based on your absence policy.
What ReedGroup Is Doing
As a third-party administrator, ReedGroup is committed to serving our clients’ needs. Our staff is highly trained on how to assess when paperwork is timely and communicating with our clients in the event paperwork is late.
If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.