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FMLA Outside Limits, While Terminated?
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FMLA Outside Limits, While Terminated?
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I'll try to be brief (but I'm sorry...it will still be long)!
We have a point policy for attendance. EE was in point trouble and then requested FMLA. We held termination pending FMLA, but CBA requi
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Forums » Topic Forums » Legal Forum » FMLA Outside Limits, While Terminated?
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FMLA Outside Limits, While Terminated?
posted at 8/19/2011 4:06 AM EDT
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Posts: 4
First: 8/19/2011 Last: 8/19/2011 |
I'll try to be brief (but I'm sorry...it will still be long)!
We have a point policy for attendance. EE was in point trouble and then requested FMLA. We held termination pending FMLA, but CBA requires a more timely response than the 15 days FMLA allows. EE returned certification, but it did not cover the days that put him point trouble, instead giving him 3 weeks of consecutive FMLA from the date he turned it in. I gave him 7 more days (per FMLA) to get the dates corrected. In the meantime, he was fired pending this new FMLA paperwork (as allowed/required by CBA) with the intention of reinstating him if he got the paperwork in before the deadline. EE turned in new certification, but it still did not cover the days that caused termination. I did not extend the deadline again (he had one more day and fully informed, but he did not try to get paperwork). Company decided to give him more time at a later meeting with the union. EE got a 3rd doctor to cover the dates within the company's time limit. EE is reinstated. So, here are my questions (termination of EE is not in question as it was per CBA): 1. Was I required to give him more time under FMLA? How many times does an employee get to "fix" his FMLA? I am unaware of any extenuating circumstances to cover delays (unless any of the above qualifies, and I'm just missing it). 2. I considered the last certification to be for the company request/agreement and not actual FMLA since it was 8 days after the last FMLA deadline (27 days past absence). Am I wrong in that and should go back to cover those days as FMLA (I was just going to have it "excused" by the company per agreement)? We were waiting on paperwork, so delay in designation is acceptable, but do I run into trouble with him being outside of deadlines for future FMLA disputes? I am FMLA administrator and did not give more time, the company did. Is that an implied extention of FMLA? or is that just something on the company and not through FMLA? 3. I've been told to go back and cover the entire time EE was off (terminated) as FMLA. Yes, EE had FMLA for consecutive leave, BUT he was terminated/suspended and would not have been able to work even if he didn't have FMLA. Also, because the EE was terminated when he turned in the paperwork for this consecutive FMLA, I did not send out a designation saying it was FMLA (because you don't cover terminated EEs with FMLA). This doesn't appear to meet any of the qualifications for why you can go back to retroactively assign FMLA, nor does it seem to meet the covered scheduled hours that can be counted against FMLA. Am I wrong on that? Is there something I'm misreading? Or can I only go back and assign FMLA from his reinstatement (with proper notification)? Again, sorry about the length. Thanks for any help. I do not want to do something that's going to bite the company down the road. |
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FMLA Outside Limits, While Terminated?
posted at 8/19/2011 4:13 AM EDT
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Posts: 4
First: 8/19/2011 Last: 8/19/2011 |
Oh, I should also state that other than when he was terminated, I gave him all the required notifications. I also spoke with the employee numerous times to explain those notifications and emphasize deadlines. I also (with EE's permission) spoke with one of the physicians who completed paperwork to clear up any confusion and she did not feel she could go back and cover the days that were in question. She did bend over backward to get him an earlier appointment with a specialist so he could meet deadlines. She believed the specialist would go back and cover those dates, but he didn't. |
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FMLA Outside Limits, While Terminated?
posted at 8/19/2011 5:48 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
"We held termination pending FMLA, but CBA requires a more timely response than the 15 days FMLA allows."
This statement really really bothers me. A CBA can NOT override the time limits on the Federal Law. It can extend the limits further, but it can not limit them further or take away response time. |
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FMLA Outside Limits, While Terminated?
posted at 8/19/2011 6:15 AM EDT
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Posts: 4
First: 8/19/2011 Last: 8/19/2011 |
Termination was never in question per law or per union (as long as certain conditions are met, which we did). Plus, termination only happened after his certification did not cover the days that got him fired (we have a liberal attendance policy, and those days just pushed him over the edge; his termination was not just based on those 2 days). We extended time for him to get it changed, but the cert was complete (he just didn't like what it said). "Termination" was only pending paperwork that covered the days in question, which was finally turned in well after any FMLA limits. Union/company agreement is why he was reinstated. |
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FMLA Outside Limits, While Terminated?
posted at 8/19/2011 6:18 AM EDT
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Posts: 4
First: 8/19/2011 Last: 8/19/2011 |
So, to be clear: he was only "terminated" after his FMLA was turned in and it did not cover the days in question. We kept his termination "pending" so he could see a specialist and try to get those days covered. Intent was always to reinstate when he got paperwork for those days. |
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FMLA Outside Limits, While Terminated?
posted at 8/19/2011 6:21 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
"In the meantime, he was fired pending this new FMLA paperwork (as allowed/required by CBA) with the intention of reinstating him if he got the paperwork in before the deadline."
Second problem is that he should not have been terminated during this time period either... "In most cases, the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter, or, in the case of unforeseen leave, within five business days after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration. The employee must provide the requested certification to the employer within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification....The employer shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient. A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive. The employer must provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee's diligent good faith efforts) to cure any such deficiency. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave, in accordance with §825.313. A certification that is not returned to the employer is not considered incomplete or insufficient, but constitutes a failure to provide certification." per section 825.305 FMLA Regulations |
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FMLA Outside Limits, While Terminated?
posted at 8/19/2011 6:24 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I posted before I saw your responses. I would still be questioning the timing. It seems to me like the employer is doing everything to deny this employee their right to FMLA. And usually I am very pro on the side of the employer.
If the employee weren't acting in good faith, I would have a differing opinion. And in most cases it is better for the employer to tag the time as "pending FMLA" and not terminate until the whole situation is final. It seems to me that he was terminated earlier than I would normally suggest to any employer. Just sounds like the employer jumped the gun. |
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