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[mistifalx]

Jurisdiction/Place:

I was out sick for a serious health condition and was 2 days late getting the medical certification to my employer. I returned to work for a few weeks after recovering enough to work and filed an appeal with the company's absence administration department per company protocol for the late paperwork stating I was too sick to get it in in a reasonable amount of time. After being back to work for 2 weeks I was terminated because the medical certification was 2 days later than company policy. Can they do this?

[cbg]

That depends. How many days after you were given the paperwork did you return it? How long altogether were you out?

[mistifalx]

The company allows for 25 days and the doctor submitted the medical certification in 27 days. I was out from July 9th until August 26th. So 49 days altogether.

[cbg]

Legally, the law only requires that they wait 15 days for certification, so the law is not going to force them to accept the certification 12 days after the fact.

Since you not only missed the legal deadline, but the company deadline which is considerably more generous than the legal deadline, they are free to deny FMLA and fire you for excessive absences under the company policy.

[mistifalx]

I did some research and located this info on the DOL website which supports my side. I am wondering if it will be worthwhile to sue

Section Number: 825.311
(b) When the need for leave is not foreseeable, or in the case of
re certification, an employee must provide certification (or
re certification) within the time frame requested by the employer (which
must allow at least 15 days after the employer's request) or as soon as
reasonably possible under the particular facts and circumstances. In the
case of a medical emergency, it may not be practicable for an employee
to provide the required certification within 15 calendar days. If an
employee fails to provide a medical certification
within a reasonable time under the pertinent circumstances, the employer
may delay the employee's continuation of FMLA leave. If the employee
never produces the certification, the leave is not FMLA leave.
The law mandates a minimum of 15 days but, per Section Number: 825.305
(d) At the time the employer requests certification, the employer
must also advise an employee of the anticipated consequences of an
employee's failure to provide adequate certification. The employer shall
advise an employee whenever the employer finds a certification
incomplete, and provide the employee a reasonable opportunity to cure
any such deficiency.
(e) If the employer's sick or medical leave plan imposes medical
certification requirements that are less stringent than the
certification requirements of these regulations, and the employee or
employer elects to substitute paid sick, vacation, personal or family
leave for unpaid FMLA leave where authorized (see Sec. 825.207), only
the employer's less stringent sick leave certification requirements may
be imposed.

[cbg]

On what basis would you sue? I'm not seeing where this supports your side.

[mistifalx]

Wrongful termination in violation of FMLA federal laws:

The following seems to state the (15) days is out and the 25 days is the standard to go by. So 27 days instead of 25

(e) If the employer's sick or medical leave plan imposes medical
certification requirements that are less stringent than the
certification requirements of these regulations, and the employee or
employer elects to substitute paid sick, vacation, personal or family
leave for unpaid FMLA leave where authorized (see Sec. 825.207), only
the employer's less stringent sick leave certification requirements may
be imposed.

The way I read, it seems that the law only allows the employer to delay FMLA leave until certification is received, not terminate unless they never receive the paperwork.

"The employer shall advise an employee whenever the employer finds a certification
incomplete, and provide the employee a reasonable opportunity to cure
any such deficiency."

I can't see 2 days not being a reasonable amount of time after discovering the paperwork was not submitted.

[cbg]

You're misreading the law.

If you had turned in the forms, and the forms were incomplete, the employer would have to advise you of such and give you reasonable time to have it corrected. But that's not what happened.

You have not said anything at all about asking to substitute paid leave for part of the FMLA, and in any case the employer DID grant you all the time in the less stringent requirements. You STILL didn't meet it.

[mistifalx]

I retained a lawyer for $2500 plus $250/hr and now I am wondering if I wasted my $$$

[Gregdg]

If the medical certification was late because of delay on the part of your physician and not you (which seems to be what you are saying), then you have a basis for a lawsuit.

Good luck.