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RobertJDFL
RobertJDFL, Lawyer
Category: Employment Law
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I put fmla papers in a year ago and asked if I had to renew

Customer Question

I put fmla papers in a year ago and asked if I had to renew every year and was told no. I had to use an FMLA day recently and im facing getting fired . my employer is saying it expired. Is this true?
Submitted: 9 months ago.
Category: Employment Law
Expert:  RobertJDFL replied 9 months ago.

Thank you for using Just Answer. I look forward to assisting you.

An employer can request re-certification, yes, where an illness is ongoing and expected to last beyond a 12 month period. Per the Department of Labor:

"In general, the employer may request the employee to provide a recertification no more often than every 30 days and only in connection with an absence by the employee. If a certification indicates that the minimum duration of the serious health condition is more than 30 days, the employer must generally wait until that minimum duration expires before requesting recertification. However, in all cases, including cases where the condition is of an indefinite duration, the employer may request a recertification for absences every six months. The employer may request a recertification in less than 30 days only if:

• the employee requests an extension of leave,

• the circumstances described by the previous certification have changed significantly, or

• the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification.

They further note: "Annual certification - If the employee’s need for FMLA leave lasts beyond a single FMLA leave year, the employer may require the employee to provide a new medical certification in each new FMLA leave year."

However, the DOL also states that: "The employer must notify the employee each time a certification is required. The employer’s notice must be included in the written notice of FMLA rights and responsibilities given to the employee when leave is first requested. The employer may request certification at a later date if it questions the appropriateness of the leave or its duration."

Therefore, when you first requested leave for your medicall condition, the employer should have provided you notice of their right to request FMLA re-certification from you. If they didn't do that, there is an argument that you cannot be held accountable because you weren't aware of your duty to re-certify.

Beyond that, however, I think your employer is taking this to the extreme. If you haven't re-certified, the better course of action is for them to not count the day you took off as FMLA (perhaps you can use a vacation day or sick day for it) and then when you re-certify, continue on from that point.

You can read the fact sheet from the Department of Labor on medical certification under FMLA here.

Customer: replied 9 months ago.
I just found out my FMLA is expired on 5/13/2016 and the supervisor has charged me with a point and wants documentation where do I stand on this matter?
Expert:  RobertJDFL replied 9 months ago.

So they are penalizing you because you have to give certification? They can't do that.

If an employee fails to timely submit a properly requested medical certification (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave.

If an employee fails to submit a properly requested fitness-for-duty certification, the employer may delay job restoration until the employee provides the certification. If the employee never provides the certification, he or she may be denied reinstatement.

In other words, if you don't timely submit re-certification they can deny you FMLA leave or even deny reinstating you, but they're not allowed to punish an employee for having to take FMLA leave. If you otherwise meet all the qualification requirements, you are entitled to it.

Customer: replied 9 months ago.
My FMLA I gave to them in may it is not up for recertification but they are giving me a point for using it they also want documentation. My FMLA is because of my mom with heart failure.
Expert:  RobertJDFL replied 9 months ago.

An employer cannot interfere with or penalize you for taking FMLA if you otherwise qualify for it. It is against the law. Per the Department of Labor, Wage and Hour (WHD) Division:

"Your employer is prohibited from interfering with, restraining, or denying the exercise of FMLA rights, retaliating against you for filing a complaint and cooperating with the Wage and Hour Division (WHD), or bringing private action to court. You should contact the WHD immediately if your employer retaliates against you for engaging in any of the legally protected activities. For additional information, call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4-USWAGE (1-***-***-****)."

You should also look at the fact sheet they put out on the issue:

http://www.dol.gov/whd/regs/compliance/whdfs77b.pdf

An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The employer must state in writing what additional information is necessary to make the certification complete and sufficient and must allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts. So, if you've provided documentation (and the employer IS entitled to ask for proof of medical need), they have to tell you what is missing and give you a chance to make it right. You do not, legally, however, have to provide medical records.

Expert:  RobertJDFL replied 9 months ago.

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