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Q & A: Family and Medical Leave Act (FMLA)
Q. “We have received an incomplete medical certification for an employee who has requested FMLA leave and have been unable to obtain the information we need. There are reasons to suspect this may be a fraudulent request. What should we do?”
A. Reviewing, evaluating and contesting, if necessary, requests for leaves is critical to avoiding abuse in the FMLA process. There have been two recent court cases that are relevant to your question. The recent case of Taylor & Taylor v. Ameritech Services notes:
"While a company is not permitted to interfere with the ability to obtain a medical certification, a constant extending of the submittal deadline is not required of the employer. As stated, all the employer is required to do is provide the employee with a "reasonable opportunity' to cure the deficiency; no more was required."Another recent case, Ridings v. Riverside Medical Center illustrates that while an employer has an obligation to provide FMLA paperwork and information, it also can require the employee to comply with a request to return medical certification documenting the need for leave within a reasonable period of time.
"Employers may also require that completed certifications be faxed or mailed by the doctor rather than permitting the applicant to do the sending."
"Nothing in the statute forbids an employer to adopt reasonable, non-burdensome measures for preventing fraud."
Q. “We have an employee who will be on a reduced leave schedule under the FMLA to provide care to his son who has a serious health condition. Can we transfer him to a different position?”
A. If the leave is foreseeable or planned, the employer may temporarily transfer the employee to an available alternate job that better accommodates recurring periods of leave than the employee’s regular job. According to FMLA regulations, if an employee is transferred, the alternative position must have the same pay and benefit as the previous position, although the duties may differ. Also, the employee must be qualified to perform the alternate job. Once the employee is able to return to full-time work, he must be returned to his regular, or an equivalent job.
An employer cannot transfer an employee to a position to discourage the employee from taking leave or otherwise work a hardship on the employee. The FMLA specifically identifies some job transfers that are prohibited under the Act including: (1) assigning a "white collar" worker to a job as a laborer; (2) transferring a dayshift employee to the graveyard shift; and (3) transferring an employee to a facility a significant distance away from the facility where the employee normally works.
Before a transfer is made, it is also important to consider applicable state and federal laws, as well as applicable collective bargaining agreements.