Human Resource Blog

FMLA Refusal

We have an employee who told her supervisor she had been diagnosed with cancer. She would initially need to be off work for surgery on Friday, Monday, and Tuesday, and then would have radiation treatments during the following weeks. This employee stated she would use her PTO, sick time, personal time, etc., and try not to miss much work and have the treatments over her lunch break as much as possible.

As an HR Director, I explained to this employee that this time away from work should be FMLA. I suggested she come to my office to complete the paperwork. The employee said she did not want FMLA at this time. I told her we really did need to go ahead and put her on FMLA for the full days that she would miss work and intermittant FMLA afterwards. The employee continued to refuse. I explained this was for her own job protection and also it is our policy. She asked if she could download the paperwork from our electronic library and I told her the papers did not reside there and she must meet with me so we can complete the paperwork together which has also been our policy. I explained that I want to be sure she understands her rights and responsibilies under FMLA and can ask questions if she has any. I explained the timeframe she would need to return the Certification, etc.

A week before the paperwork was to be returned she told me she had a new doctor and he was refusing to complete the paperwork. She said he only completes FMLA paperwork when his patients will be out for more than 4 weeks. I spoke to our employment council and the attorney said he had never heard of a doctor refusing to complete the paperwork and I should still insist that the paperwork be returned to me. I got back to the employee and explained that the doctor works for her. I suggested that maybe she could ask him again for this paperwork and explain to him that her employer is asking for this paperwork for FMLA purposes and he could state his refusal.

Since I did not receive the paperwork by the 15th day, I called her supervisor who asked me to call her directly on the 15th day. This employee was indignant that I called her after her surgery and asked why it was so urgent that I call her at home. She also asked if I could wait until the next day to speak to her. I told her she could call me back another time but I wanted to tell her that this day was the deadline and we were having problems with our fax. Later that day I received the paperwork faxed from her doctor.

I was always kind and friendly towards this employee, but cautious as well. Later, my CEO made the comment that these are benefits and we do not want to harass our employees. Do you have any comments or concerns about how this FMLA situation was administered? Thank you, C

Yes, we have some serious concerns about how FMLA was administered in this case. We are sure that you meant to be helpful and supportive to the employee, but demanding that FMLA paperwork be completed in a face-to-face interview with HR is definitely NOT a best practice, and probably deprives the employee of her rights under FMLA. Many, many employees would see this as intrusive. Remember that the employee does not owe you a diagnosis or any other information beyond the certification form itself.

There were significant changes to the FMLA regulations in January 2009, and additional changes as recently as June 22, 2010. The best tactic would probably be to start off the discussion of FMLA by telling the employee it protects his or her job.

Some people respond better to information that is delivered verbally, while others respond better to information that is delivered in writing. It appears that in this case, you are a person who responds to verbal information (in person or via phone) and you are assuming that all your employees do, too. However, people who respond better to written information would be more likley to comply with the info posted on a website or with a hard copy.

The usual process for FMLA is for the employer to notify the employee of FMLA rights in writing, with forms attached, by certified mail. If you like, you could include a note or memo stating that you are available in person or by phone to help fill out the forms. You could even leave a phone message or briefly mention to the employee that you are available to answer questions or help. But it is more than a little insulting to insinuate that the average employee is not capable of filling out FMLA forms for himself or herself. By law, this written FMLA notification must occur within 5 business days of the first absence.

By not allowing the employee to complete the FMLA forms on her own, you were unlawfully depriving her of her rights under FMLA.

The employee also has the right to not apply for FMLA, to not complete the FMLA forms or to not submit the certification form. At that point, the employer has the right to terminate the employee if she has too many absences, or to put her on FMLA without certification, or to put her on FMLA retroactively (for the employees own illness only.)

We agree that the doctor probably did not refuse to complete the FMLA certification — the employee decided it was not necessary. That is her right. At that point, it would be better to explain to the employee the consequences of not filing for FMLA, as in *if you are late returning from a chemo treatment, or have to take the afternoon off, we will have no choice but to discipline you for absenteeism or tardiness. FMLA protects your job.*

(We will say that there is a paternalistic flavor to your dealings with this employee. You seem to think that she has to listen to you, and to do what you say. In fact, employees are adults who make their own decisions. Not completing FMLA certification would be a bad decision, but it is one that the employee is entitled to make. It also appears that you may have taken revenge against the employee for not following your directions, by calling her at home on the day of her surgery.)

Since you knew the days the employee would be out for surgery, it showed very poor judgment on your part to call the employee at home on that day. You certainly could have informed her of the impending deadline on the 12th day, or the 14th day, or whatever. Since your fax was not working, you could have even extended the deadline. There is no legal requirement that you nag the employee until the FMLA papers are delivered, and many would see it as unprofessional for you to do so. You were simply responsible for sending the forms, and processing them once they were received.

Your CEO is wrong about one thing — FMLA is not a benefit. It is a legal entitlement. Not handling it properly has legal and financial ramifications for your company. There are a number of companies that provide good one-day seminars on the current FMLA regulations and procedures. Our suggestion is that you sign up for one.  

The FMLA forms sugested by the U.S. DOL are at the bottom of this page: http://www.dol.gov/whd/fmla/index.htm

Read more about the most recent change to FMLA here: http://blog.laborlawcenter.com/2010/06/30/new-fmla-entitlement-for-aunts-uncles-grandparents-same-sex-parents/