Workforce.com

Employee FMLA Rights and Certification

August 30, 2006
Can an employer lawfully fire an employee who requests a Family and Medical Leave Act leave but fails to provide an FMLA certification? No.

    Employee Jackie Killian, a third-shift spot welder, needed surgery and requested FMLA leave between November 4 and December 10, 2001. When a doctor’s certification was submitted, her FMLA leave was approved. Following surgery, on December 4, Killian requested an extension. Her employer requested that she provide a new certification. Her doctor sent her a new certification on December 10, asking for an extension until December 17. When Killian did not return to work on December 10, she was fired.

    Her employer argued that the termination was lawful because Killian did not provide a recertification until the day on which she was originally scheduled to return to work.

    According to the U.S. Court of Appeals for the 6th Circuit in Cincinnati, Killian provided adequate notice of her need for an extended FMLA leave. The Department of Labor rules required the employer to provide Killian with 15 days from the date of its request for the employee to submit medical certification supporting her extension of leave. Killian’s medical certification, provided on December 4, 2001, was timely under the FMLA. Finally, even if Killian had failed to provide the certification in a timely fashion, her employer’s remedy under the regulations was delayed leave, not termination. Jackie Killian v. Yorozu Automotive Tennessee Inc., Case No. 04-6202 (7/20/06).

    Impact: In the case of foreseeable leave, an employer may delay the taking of FMLA leave to an employee who fails to provide timely certification after being requested by the employer to furnish such certification (i.e., within 15 calendar days, if practicable), until the required certification is provided. Firing an employee because the employee does not provide a FMLA certification can be risky.

Workforce Management, August 28, 2006, p. 11 -- Subscribe Now!