The Family Medical Leave Act (“FMLA”) and accompanying regulations require employees to return a requested medical certification within 15 days. I frequently get questions asking what to do if an eligible employee does not return the medical certification within the 15-day period. While the FMLA suggests that an employer may be able to deny FMLA leave at this point, there are several important questions that must be asked and answered first. Twos of those questions are discussed below.
The first thing I want to know is when the employee received the request for a medical certification and the required forms. The 15-day calendar period actually runs from the date of receipt (or sometimes constructive receipt) of the request and not necessarily when the employer puts the documents in the mail.
Next, I ask whether the employer is aware of any extenuating circumstances preventing the timely return of the medical certification. While most employers are familiar with the 15-day deadline to return a certification, some do not know that under the relevant regulation, 29 CFR § 825.313, the 15-day deadline is not absolute: “[A]n employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.” (Emphasis added). Based on this regulation, the DOL instructs that if an employee is unable to meet the 15-calendar day deadline from receipt of the request for certification but made diligent good faith efforts to do so and the delay was due to extenuating circumstances outside his or her control, the employer may not deny the leave for the period that the certification was late.
The courts too have recognized that the 15-day deadline to return an FMLA medical certification may be extended in certain cases using a theory akin to equitable tolling. A Texas federal district court has described the evidentiary showing as follows: (i) the employee must show that he or she diligently and in good faith pursued a certification before the 15-day deadline, (ii) those efforts were communicated to the employer, and (iii) it was not practicable to return the certification within 15 calendar days. See Crane v. Gore Design Completion, Ltd., 21 F. Supp.3d 769 (W.D. Tex. 2014).
For example, in Crane, equitable tolling was allowed and summary judgment denied to an employer based on evidence that the employee diligently followed up with her doctor to fill out the certification form but the doctor refused until after the plaintiff saw a specialist. Equitable tolling of the 15-day deadline was also recognized in a case where an employee’s doctor went on vacation for two weeks right around the time that the employee submitted the certification to him to complete. In another case, where an employee took time off to care for his wife in Colombia, the need to send the certification to and from a foreign country was deemed a basis for equitable tolling. Lastly, the Department of Labor has noted in its commentary to the regulations that employers must “be mindful that employees must rely on the cooperation of their health care providers.” Therefore, “employees should not be penalized for delays over which they have no control.”
The Bottom Line for Employers
Employers must consider if there are other reasons for a delayed medical certification or they may find themselves on the wrong side of an FMLA interference or retaliation lawsuit. As a best practice, many employers choose, although it is not required, to send out a follow-up notice if they do not receive a timely medical certification. This notice typically extends a reasonable grace period to return the certification or to notify the company why the employee needs additional time to return the certification. So, the next time you are struggling with how to respond to a missed FMLA medical certification deadline, remember that 15 days may not always mean 15 days. There may be serious consequences if you act too quickly to deny FMLA leave.