As you likely know by this point, the Family and Medical Leave Act (“FMLA”) requires covered employers to give qualified employees 12 weeks of job protected but unpaid time off of work for covered employers to address serious medical issues, either personal or family. (Best Law Reads: Can I Be Fired For Poor Job Performance After Using FMLA?; What Is The Difference Between FMLA “Interference” And “Retaliation”?; Can I Do Other Things Besides Provide Care While On FMLA?).
What steps to I need to take to initiate FMLA leave?
Medical Leave Employment Lawyer Answer: For starters, a qualified employee must provide notice to the employer that FMLA leave is needed. Unless there is an abnormal situation, an employee must follow the employer’s “usual and customary notice and procedural requirements for requesting leave.” 29 C.F.R. §§ 825.302(d), 825.303(c).
An employee appropriately places the employer on notice when the provides sufficient information that would allow the company to reasonably understand that leave is necessary for a serious health condition. (Best Law Read: Does Asking For Sick Time Trigger My FMLA Rights?).
What does my job have to do after I request FMLA leave?
Best FMLA Attorney Answer: “Once an employee gives sufficient notice to [the] employer that potentially FMLA-qualifying leave is needed, the employer must then ascertain whether the employee’s absence actually qualifies for FMLA protection.” Cruz v. Publix Super Mkts., Inc., 428 F.3d 1379, 1383 (11th Cir. 2005). Thus, after an employee puts the employer on notice of an FMLA leave request, the employer must provide the employee with information regarding that employee’s rights and eligibility for FMLA leave.
Can my company ask for medical documentation to support my request for FMLA leave?
Top Employees’ Rights Lawyer Answer: Yes. This called the FMLA certification process. After being put on notice of an employee’s potential FMLA leave, the employer has the choice to require the employee to provide medical certification from a doctor that includes: (1) the name, contact information, and type of medical practice/specialization of the health care provider (2) the starting date for the serious health condition, (2) the likely length of the employee’s or family member’s medical condition, (3) pertinent medical information, (4) a declaration that the employee cannot perform the job functions, (5) the anticipated dates and duration of any medical treatment, and (6) the anticipated length of the leave that is being sought. 29 C.F.R. § 25.306(a). (Best Law Read: When Can Employers Ask For Medical Records?; When Can My Boss Ask For Medical Certification For My FMLA Leave? Top Lawyer Reply!; What Kind Of Documents Do I Have To Give My Boss To Get FMLA Leave?). The medical facts presented in the certification need to be sufficiently detailed to support the need for FMLA leave and may need to include information regarding the employee’s or family member’s diagnosis, symptoms, any hospitalizations, any doctor office appointments, any prescribed medication, and any referrals for additional past or anticipated consultations or treatment.
Once the employee returns the certification and/or medical documents, employer must either accept the certification or notify the employee of the need for additional information or documents clear up any incomplete, unclear, or ambiguous issues.
What happens if I don’t properly provide FMLA medical certification?
Best Wrongful Termination Law Firm Answer: Failing to provide proper medical certification allows the employer to deny FMLA leave to the employee, which in turn means that the employer can then fire the employee for taking unapproved time off. Indeed, the FMLA directly provides that if “the employee never produces the certification, the leave is not FMLA leave.” 29 C.F.R. § 825.313(b).
That’s exactly what happened to Ryan Walker in a case recently decided by the United States Court of Appeals for the Eleventh Circuit. See Walker v. United Parcel Service, Inc., No. 21-11267, 2022 WL 10083816, at *1 (11th Cir. Oct. 17, 2022). Walker requested FMLA but did not properly complete the certification process and then was fired when he took his medical leave. He sued his employer for wrongful termination based on theories of FMLA interference and FMLA retaliation. (Best Law Read: What Is The Difference Between FMLA “Interference” And “Retaliation”?).
After the District Court dismissed his claims, the Eleventh Circuit Court of Appeals affirmed by holding:
the one-page document he offered from Holy Cross Orthopedic Institute “did not list a date of onset, did not include any information about the nature of his illness, and noted only that Walker could not perform heavy lifting, carrying, pushing, [or] pulling until December 6, 2016,” which was insufficient. It also explained that the submissions from physician assistant Jamie Rubin and Dr. Alan Gregg failed to state “(1) that Walker could not work; (2) the date on which Walker became incapacitated; or (3) the date on which Walker could return to work,” and were thus insufficient.
Id. at *2. Further, based on the lack of proper medical documentation, the United States Court of Appeals for the Eleventh Circuit concluded that Walker was also unable to prove that he had a “serious medical condition.”
The takeaway is that it is not sufficient to just let a doctor incompletely fill out the certificate and leave it at that. If the doctor will not complete the certificate, complaint to the doctor. If that does not work, get another doctor to complete the certificate.
What should I do if I’ve been told that I cannot take FMLA leave?
Best Employee’s Rights Lawyer Answer: If you are facing FMLA interference or FMLA retaliation, you need to have your claim individually evaluated to know what your specific rights and remedies may be. The best way to do that is pick up your phone and call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). As you can see from the medical leave issues addressed above, the FMLA is incredibly complicated, and on top of that, there may be other employment laws that impact your work rights.
This employment law and employee’s legal rights website is an advertisement. The FMLA and medical leave information above and on this wrongful termination and employment law website are for informational purposes only and not for the purpose of providing legal advice. Because this website is not legal advice specific to your situation, your best choice is to call our medical leave attorneys to obtain specific advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, LLC, Brian Spitz, or any individual attorney.