Q: If an employee takes sick leave but hasn’t completed and returned a Family and Medical Leave Act (FMLA) form, can the employer lawfully terminate employment?
Both employers and employees have responsibilities when FMLA-qualifying leave is involved, including 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 employees intend 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, employees must provide notice as soon as practicable.
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, employees must comply with normal call-in rules.
Employees also don’t 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. If an employee previously used FMLA, however, the employee must specifically reference the qualifying reason or indicate the need for FMLA leave when requesting additional time off.
If employees don’t follow reasonable call-in procedures and have no valid justification for failing to do so, the employer may delay or even deny FMLA protection. It then may apply its ordinary disciplinary policies, just as it would for any other unexcused absence, including issuing warnings or terminating employment.
Still, if employees are able to comply with the employer’s procedures and simply don’t do so, the employer may lawfully impose discipline consistent with its policies. Termination can be lawful in these circumstances, not because employees needed FMLA leave but because they failed to meet the employer’s procedural requirements.
FMLA-covered employers 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 they learn, or reasonably believe, an employee’s leave is FMLA-qualifying, they must notify the employee within five business days whether the leave will be designated as FMLA leave. This ensures employees understand their rights and responsibilities, including any documentation requirements.
Employers 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 fulfilled its own FMLA obligations. Because these determinations are highly fact-specific and missteps can easily create legal exposure, you should proceed with caution.
Rebecca Bisone is an associate with Axley LLP in Madison, Wisconsin. She can be reached at 608-257-5661 or rbisone@axley.com.