Responding to Employees Who Don't Follow FMLA Procedures

Employers can delay or deny a Family Medical Leave Act (FMLA) request if an employee fails to follow FMLA and leave reporting procedures.

Jeff Nowak, a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing employers, provides guidance for these situations through FMLA Insights by exploring a recent court case.

In Reed v. Delta Air Lines, a flight attendant didn’t follow required FMLA procedures. The employee was disciplined and eventually terminated for failing to provide medical recertification and not reporting an absence according to call-in procedures.

Medical Certification

As Mr. Nowak affirms, FML must be supported by medical certification. An employee is responsible for notifying the employer of the need for leave and providing complete and sufficient medical certification or recertification to qualify for FML. The employee must return initial medical certification within 15 calendar days and any additional information requested by the employer within seven calendar days (29 CFR 825.305).

If the individual doesn’t submit or return medical certification or recertification that warrants FML, the leave can be delayed or denied. The employer should use the FML Designation Notice to notify the employee of the delay or denial.

Timely Reporting Absences

Intermittent FML is taken in separate blocks of time for periods from one hour to several weeks. Examples include leave taken for chemotherapy, pregnancy-related issues, or appointments for a single illness, injury, or qualifying exigency.

An employee with approved intermittent FML is expected to follow the employer’s absence reporting procedures. If the employee doesn’t comply, the individual can be disciplined even though the FML is approved. In the above-mentioned court case, the flight attendant didn’t call in her absence according to procedures nor communicate a viable reason for not complying.

Employers should confirm that an employee didn’t have an unusual circumstance preventing reporting. If the employee can’t identify a viable reason for failure to report the absence, discipline can proceed. Note the discipline is issued due to the employee not following procedures, not because of the request for FML.

Constructive Discipline

Typically, an employer will communicate expectations, review procedures, provide a warning, and counsel the employee before applying more severe discipline. More stringent discipline actions, if needed, could include giving a written reprimand, delaying or denying leave, reassigning, or even terminating the employee.

See Employee Discipline in the HR Library (member login required) for additional guidance on applying discipline in a fair manner.

Resources

Additional resources and information on FML can be found in the HR Library including:

• Administration of Leave Benefits
• Family and Medical Leave Tracker
• Family and Medical Leave Benefits
• Flowchart for Processing Family and Medical Leave