Legal Question in Medical Leave in Ohio
Fired day after FMLA ended for failure to return paperwork
My husband was on intermittent FMLA. He returned to work after about 6 weeks and worked for one week. Then he went back on FMLA again. When he returned to work the first time, he was told to bring his doctor's note, which he did. On the second stint, he was mailed a medical certificaiton form to complete as well as a leave of abscence form. He was advised to return them by a certain date. My husband was planning to return to work 6 days after his FMLA ended.While on FMLA, he sustained a large, second degree burn on his leg and was unable to walk for about a week. My husband had an appointment with his family doc for a check up on his primary FMLA condition and to have her complete the paperwork due in to his employer. However, since he could not walk he had to reschedule his appointment. He called his HR manager and advised her of this. His HR manager never called back. The day after the paperwork was due he was fired for failure to submit the medical certification. In the letter he was advised that he was warned failure to return the papework would result in termination. However, the paperwork and email he received concerning this never stated termination would result. Neither does his employee handbook. Legal?
1 Answer from Attorneys
Re: Fired day after FMLA ended for failure to return paperwork
It depends on many factors, including the date on which the certification was requested and the date on which he was required to return it. When an employer requests a medical certification, it must give the employee at least 15 days to submit one. If it is not practicable under the circumstances to submit a certification within the 15 day period, the employee may be given additional time (whether it is impracticable for the employee to submit the certification within 15 days despite good faith efforts, in turn, depends on other factors; however, being unable to walk may provide a sufficient excuse for not being able to supply the certification within 15 days).
Another issue is what is contained in the handbook. If the handbook (or other source) contains a policy of the employer that has less stringent medical certification requirements AND either the employer or employee elects to substitute paid sick, vacation or personal time for unpaid leave, then only the less stringent certification requirements under the employer�s policy may be imposed.
Also, the employer is supposed to request the certification when the employee advises the employer of the need for leave or within two business days thereafter. The employer may request a certification at a later date IF the employer later has reason to question the need for leave.
Finally, at the time of requesting certification, the employer must advise the employee of the consequences of the failure to provide an adequate certification. You state that he was not so advised in the FMLA paperwork, but was he advised orally or by some other method that he could be terminated for failure to comply? If not, the termination may have violated the FMLA.
Without a clear timeline as to what transpired, it is difficult to determine whether the employer ran afoul of the FMLA. If you wish, you can email me directly at [email protected] and identify everything that occurred (including conversations, if any) with dates.
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