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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Last Thursday, February 18th, I requested provisional FMLA

Customer Question

Last Thursday, February 18th, I requested provisional FMLA protection at work due to my chronic serious medical condition. I became very ill at work, informed my supervisor that my chronic illness was flaring up, and requested provisional FMLA and the necessary documents to take to my doctor. I am a State of California employee. I have been approved for FMLA protection for this condition previously.
Today, I received an email from my supervisor indicating that if I don't provide the medical substantiation by close of business this Thursday, February 25th, they will AWOL terminate me from my employment with the State of California (I have been a State employee for 27 years). I have maintained email contact with my supervisor over the last few days letting her know I was working with my doctor to determine the length of leave and would be providing documentation.
Per the FMLA documentation provided to me by my employer, I have 15 calendar days to provide the medical substantiation, and am deemed to be on provisional leave during that time period (i.e., if I don't provide the medical substantiation within the 15 calendar days, my FMLA can be denied). I don't think it is legal for them to threaten me with an AWOL separation while I am in provisional FMLA status.
Can you please advise?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

The answer here is governed by 29 CFR 825.313. That code section states:

(b) Unforeseeable leave. In the case of unforeseeable leave, an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances. For example, in the case of a medical emergency, it may not be practicable for an employee to provide the required certification within 15 calendar days. Absent such extenuating circumstances, if the employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. If the employee never produces the certification, the leave is not FMLA leave.

So, assuming that your present condition was unforeseeable, you would be correct in your understanding of the law that an employee in your circumstance has 15 days to provide sufficient certification. The code section should be cited to the employer along with an assurance that you are in the process of obtaining the certification.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.