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A Holiday Gift to
Employers: Courts are Holding Employees to their Obligations
Under the FMLA
Under the Family Medical Leave Act (“FMLA”), an employer can require
employees seeking FMLA leave to submit a certification form to qualify
for FMLA leave. In two recent cases, two different courts have ruled
against employees who failed to abide by the FMLA’s certification
provisions.
In one case, an employee submitted FMLA certification for intermittent
leave for back pain. On the certification form, the doctor had not
indicated the probable duration of the need for intermittent leave and
did not state the duration or frequency of each need for leave. The
doctor was informed of the deficiencies in the form and submitted a
revised certification form, which still did not provide any information
regarding the frequency of the periods of incapacity. In July 2006, the
employer informed the employee of the continued inadequacy of the
certification form and let another month pass. When the employer did
not receive any additional information, it denied the employee’s request
for FMLA leave on the grounds that the employee had submitted an
incomplete medical certification. For the next six months, the employee
used available sick and vacation time for episodes of back pain.
Finally, in February 2007, the doctor submitted a letter indicating the
frequency with which the employee would have episodes of back pain.
Upon receipt of that information, the employer granted the employee’s
request for FMLA leave.
Nonetheless, the employee sued for interference with his FMLA rights, on
the ground that, because he had not been granted FMLA during the summer
of 2006, he had been forced to use sick and vacation time for his back
condition. The court found that the employer had complied with or
exceeded its obligations with respect to providing notice to the
employee and an opportunity to correct the problems in the certification
form and had acted properly in denying the employee’s claim for FMLA
leave on the basis of the incomplete medical certification.
In a similar case, an employee requested FMLA leave for twelve weeks
during her pregnancy. Upon receipt of her request in March, the
employer provided a certification form for the employee’s doctor to
complete. When the employer still had not received the form by the end
of April—during which time the employee had not been reporting to
work—it sent the employee another form and letter indicating that the
employee had fifteen days to return the completed certification form.
The employee finally submitted a certification form from her doctor.
However, the form stated that the employee was currently able to work,
but would be unable to do so for six weeks after delivery of her baby in
October. Because the certification form stated that the employee was
presently able to work, the employer denied the request for FMLA leave.
By the time the certification form was submitted and the FMLA leave
denied, the employee had been out of work for twelve weeks, which is all
that she would have been entitled to under the FMLA. The employee still
did not return to work. The employer terminated her on the grounds that
she was ineligible for FMLA leave, that her previous absences were being
treated as a personal leave of absence, which she had now exhausted, and
that she was without further leave options. The employee sued for
interference with her FMLA rights and retaliation for attempting to
exercise her FMLA rights. The court denied the plaintiff’s FMLA claims
based on the fact that the employee never submitted a certification form
which showed that she currently had a “serious health condition” which
would entitle her to FMLA leave.
Employers can take heart that, while they should always carefully follow
the regulations regarding certification under the FMLA, their hands are
not tied when an employee submits an incomplete form or a form which
does not support the employee’s claim of entitlement to FMLA leave.
If you have any questions about your company’s FMLA certification form,
any particular employee’s request or certification for FMLA leave, or
questions about the FMLA or employment law generally, please contact
Bryn Wilson at
bwilson@poynerspruill.com or (919) 783-1117
or
Susie Gibbons at 919.783.2813 or
sgibbons@poynerspruill.com.
All Employers Must Use New I-9 Form Issued by the USCIS
The U.S. Citizenship and Immigration Services (USCIS) recently released
a revised I-9 form, Employment Eligibility Verification. All employers
must complete the new I-9 form for each new employee hired in the United
States. Employers that fail to use the new I-9 form may incur fines and
penalties. The new I-9, among other changes, removes the following five
documents from the List of Acceptable Documents: Alien Registration
Receipt Card (I-151), Certificate of Naturalization (Form N-550 or
N-570), Certificate of U.S. Citizenship (Form N-560 or N-561), Unexpired
Reentry Permit (Form I-327) and Unexpired Refugee Travel Document (Form
I-571). Such documents are no longer acceptable for verification of
immigrant or citizenship status. A list of all documents that are
acceptable to verify immigrant or citizenship status can be found in the
new Handbook for Employers, Instructions for Completing the Form I-9
http://www.uscis.gov/files/nativedocuments/m-274.pdf. Additionally,
a copy of the new I-9 form can be found at
http://www.uscis.gov/files/form/I-9.pdf.
If you need assistance utilizing the new I-9 form or auditing your
existing I-9s, please contact
Susie Gibbons at 919.783.2813 or
sgibbons@poynerspruill.com.
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