The Essential Guide to Family & Medical Leave

160 | the essential guide to family and medical leave
Caution
A written policy isn’t enough. Many employers have policies explaining
FMLA leave in their employee handbooks. (For information on what your
FMLA policy should include, see Chapter 2, “If Your Company Is Covered,”
and Appendix B.) Typically, these policies cover medical certifications,
including the information you must give the employee when you request
one. If your company has this type of policy, however, it doesn’t take the
place of a written request and notice to the employee, made when the employee
tells you that he or she needs leave. Courts have found that employers
who don’t make a specific written request to the employee cannot later
challenge the employee’s certification—or failure to provide one.
You should make your request as soon as the employee asks for leave
for a serious health condition. The regulations interpreting the FMLA say
that employers “should” request a certification within two business days
of learning that an employee needs leave, either because the employee has
requested leave or because the employee has taken leave for an unforeseeable
purpose (emergency surgery, for example). The regulations give you the
right to request certification later only if you “have reason to question” the
duration or appropriateness of the leave. The best practice is not to rely on
this language but instead to give your notice and request a certification right
away, every time.
Policy alert
If your policies are more generous, you must follow them. If an employee
is substituting paid time off (vacation time, sick leave, or other employerprovided
leave) for unpaid FMLA leave, and your policies provide more
lenient procedures or deadlines for medical certifications, you must follow
those policies. For example, if your policies provide that an employee may
hand in a medical certification or doctor’s note after returning from sick
leave, you must allow the employee to follow these procedures for FMLA
leave for a serious medical condition—even if the employee would have
had to return the form sooner under the FMLA.