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Violated FMLA?
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Violated FMLA?
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
hi.i recently terminated a f/t employee
who worked for my firm for the past 2 years. the guy was out 2 weeks for approved fmla leave, however he returned to work without his certification and fmla do
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Forums » Topic Forums » Legal Forum » Violated FMLA?
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Violated FMLA?
posted at 7/25/1999 5:43 AM EDT
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Posts: 2
First: 7/25/1999 Last: 7/25/1999 |
hi.i recently terminated a f/t employee
who worked for my firm for the past 2 years. the guy was out 2 weeks for approved fmla leave, however he returned to work without his certification and fmla doc. i had faxed his doctor's office the fmla doc 2 days prior to his return, but the doctor was going to miss the deadline (by 1 day)for completing same and faxing back to my office. the guy had worked a couple of hours before i sent him home to at least get the return to work certification to me before the end of the business day, which he did. i spoke with his doctor's office by phone on the deadline day, and was told the guy should have submitted the paperwork earlier, and it probably would have been done on time. the boss said to axe the guy the following day, even though we had the return to work certification. my question: is firing the guy legal, or might we be in for some problems down the line? |
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Violated FMLA?
posted at 7/25/1999 7:32 AM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
I think you're in for "problems". You'd be hard-pressed to convince others, given what you gave here, that there wasn't a hidden agenda.
Your employee has 72 hours from the request to comply. He only missed by a day from his return and complied immediately on your request. From where I'm sitting, the first question that pops in my mind is "What's the hurry to get rid of this guy?" |
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Violated FMLA?
posted at 7/25/1999 8:04 AM EDT
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Posts: 2
First: 7/25/1999 Last: 7/25/1999 |
and if there might be grounds for a civil action, could i possibly be held personally liable, or would the burden for the dismissal fall on my company?
i am new to the hr field, so any info or pointers to where i need to research answers would be greatly appreciated! |
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Violated FMLA?
posted at 7/25/1999 10:06 AM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
Haven't you already let the employee go? You need to discuss the need for damage control with your superior(s) and possibly with your company's attorney.
There may not be a need; your people know the situation best - I'm just a little uncomfortable with the outcome based on the scenario you described. |
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Violated FMLA?
posted at 7/26/1999 4:11 AM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
The first issue is whether your applicable policies modify employee FMLA notice obligations (in the employee's favor).
Under FMLA, if the leave was not foreseeable, the employee must provide requested medical certification within the time requested (did you specify when you wanted the certification returned?); the request must allow a minimum of 15 days, and advise the employee of the anticipated consequences of failure to provide adequate certification. Even then, the employee is permitted additional time if compliance within the 15 days "is not practicable under the particular circumstances . . . despite the employee's diligent, good faith efforts." 29 C.F.R. Sec. 825.305. Finally, even failure to timely provide the requested certification allows the employer to "delay continuation of FMLA leave"; it is only "if the employee never produces the certification [that] the leave is not FMLA leave." Assuming, at the end of the day, the employee's leave was not FMLA, the employee could challenge whether your company has a consistent policy of terminating employees for a single violation of its absence control guidelines, or whether the termination was for another, impermissible purpose. |
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