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An employee was out more than 2 weeks. The company wouldn't…

An employee was out...

An employee was out more than 2 weeks. The company wouldn't allow her to return until she had a doctor's note. However, she had to wait until she had medical coverage which would take effect 3/1st. She returned with a doctor's note, however, it did not indicate "no restrictions" which is a must. She did not see the dr, this was a note composed by the secretary. She sees a dr end of the week. Had she been able to return to work under having full medical coverage she would have returned sooner. Did she have to fill out FMLA forms from the start or is it possible to do it upon bringing a dr's note? Please advise. Thank you.

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

NY

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

No union, at will and full time.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I hope the message was clear. I think I covered much of it. Thank you.

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3/8/2018
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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Thank you for using JustAnswer.

You mentioned that she wouldn't have medical coverage which would take effect 3/1. Was this because she's a new employee? Or did she simply recently sign up for insurance?

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Customer reply replied 4 months ago
She was unable to return to work without a doctor's note. Since she changed insurances which would take effect 3/1st, she had to be out all that time.

I see. And to be clear she had worked at least 1 year for the employer, and at least 1250 hours in the past year?

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Customer reply replied 4 months ago
Correct. Yes.

Thank you. One moment please...

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The first thing that you need to know is that New York is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

Now the regulations at 29 CFR § 825.313 handles this situation:

29 CFR § 825.313 Failure to provide certification.

(a)Foreseeable leave. In the case of foreseeable leave, if an employee fails to provide certification in a timely manner as required by § 825.305, then an employer may deny FMLA coverage until the required certification is provided. For example, if an employee has 15 days to provide a certification and does not provide the certification for 45 days without sufficient reason for the delay, the employer can deny FMLA protections for the 30-day period following the expiration of the 15-day time period, if the employee takes leave during such period.

(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.

(c)Recertification. An employee must provide recertification within the time requested by the employer (which must allow at least 15 calendar days after the request) or as soon as practicable under the particular facts and circumstances. If an employee fails to provide a recertification within a reasonable time under the particular facts and circumstances, then the employer may deny continuation of the FMLA leave protections until the employee produces a sufficient recertification. If the employee never produces the recertification, the leave is not FMLA leave. Recertification does not apply to leave taken for a qualifying exigency or to care for a covered servicemember.

(d)Fitness-for-duty certification. When requested by the employer pursuant to a uniformly applied policy for similarly-situated employees, the employee must provide medical certification, at the time the employee seeks reinstatement at the end of FMLA leave taken for the employee's serious health condition, that the employee is fit for duty and able to return to work (see § 825.312(a)) if the employer has provided the required notice (see § 825.300(e)); the employer may delay restoration until the certification is provided. Unless the employee provides either a fitness-for-duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded, the employee may be terminated. See also § 825.213(a)(3).

In short this says that the employer can require certification AND can require that there is a "fitness for duty" (clear to return) certification so long as it's uniformly applied to similarly situated employees. In other words, if the employee can prove that the employer did NOT enforce this policy uniformly (allows some to return without such a certification in the same or similar situation) then that could be an FMLA violation. But assuming that the employer does this uniformly, then it would be legal.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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Customer reply replied 4 months ago
Thank you for your information!
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