Employer Options When FMLA Documentation Is Missing

If an employee takes sick leave but hasn’t completed and returned an FMLA form, can the employer lawfully terminate employment?

The Family Medical Leave Act (FMLA) applies to all local, state, federal, and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or proceeding calendar year. An employee is eligible for FMLA leave if they are employed by a covered employer, have completed at least 1,250 hours of work in the preceding 12 months, are based at a location where the employer maintains a workforce of 50 or more employees within a 75-mile radius, and have been employed with their covered employer for a minimum of 12 months. The FMLA provides eligible employees up to 12 workweeks of unpaid, job-protected leave each year, with group health benefits maintained during the leave. Due to these protections, employers and employees both have important responsibilities when FMLA-qualifying leave is involved. Such responsibilities include timely notice and compliance with employer policies. To assess what happens when an employee takes potentially FMLA-qualifying sick leave but fails to return the required forms, it’s important first to understand how the FMLA’s notice requirements function.

Generally, when an employee intends to take FMLA leave, they must give their employer 30 days’ advance notice. Of course, not every medical situation is predictable. When the need for leave arises less than 30 days in advance, the employee must provide notice as soon as practicable under the circumstances. In cases of a true emergency, that is, where the need for leave is unusual or unforeseen, the “as soon as practicable” requirement may simply mean notifying the employer as soon as the employee is able to communicate.

Regardless of timing, employees are expected to follow their employer’s usual and customary procedures for reporting absences, unless an unusual or unforeseen circumstance prevents them from doing so. This could include, for example, a medical condition that makes communication impossible. When no such exception exists, the employee must comply with normal call-in rules.

Employees also do not need to expressly mention “FMLA” the first time they request leave for what turns out to be an FMLA-qualifying reason. They only need to provide enough information for the employer to recognize a potential qualifying situation. However, if the employee previously used FMLA, they must specifically reference the qualifying reason or indicate the need for FMLA leave when requesting additional time off.

If an employee does not follow reasonable call-in procedures and has no valid justification for failing to do so, the employer may delay or even deny FMLA protection. In that situation, the employer may apply its ordinary disciplinary policies, just as it would for any other unexcused absence, including issuing warnings or terminating employment.

Still, if the employee is able to comply with the employer’s procedures and simply does not do so, the employer may lawfully impose discipline consistent with its policies. Termination can be lawful in these circumstances, not because the employee needed FMLA leave, but because they failed to meet the employer’s procedural requirements.

Employers covered by the FMLA also have duties. They must post a general FMLA notice in a conspicuous location explaining employees’ rights and the process for filing complaints. Additionally, once the employer learns, or should reasonably know, that an employee’s leave may be FMLA-qualifying, the employer must notice the employee within five business days whether the leave will be designated as FMLA leave, absent unusual circumstances. This ensures the employees understand their rights and responsibilities, including any documentation requirements.

An employer may lawfully terminate an employee who fails to follow required notice or certification procedures, but only if the employee was reasonably able to comply and the employer has fulfilled its own FMLA obligations. Because these determinations are highly fact-specific and missteps can easily create legal exposure, employers should proceed with caution.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.