Sick leave without an FMLA form—Is termination an option?

Q         If an employee takes sick leave but hasn’t completed and returned an Family and Medical Leave Act (FMLA) form, can the employer lawfully terminate employment?

Under the FMLA, employers are permitted to require medical certification in support of an employee’s request for leave due to serious health conditions. The request for medical certification must be in writing and needs to notify the employee of the deadline for replying (no less than 15 days) and the consequences of failure to provide the requested information. If additional information is required from the employee to make the certification complete, the employer must provide written notice of the deficiency and allow the employee another seven calendar days to resolve it. Where the employee is already on leave, it is recommended to request the certification within five days.

Unless the employee demonstrates a good-faith effort to comply and shows that circumstances beyond the employee’s control prevented timely submission of a complete and sufficient certification (for example, delays attributable to the healthcare provider or the condition itself), the employer may deny the uncertified request for FMLA leave. The employer may then treat the absence in accordance with its established attendance, sick leave, or other applicable leave policies and discipline accordingly—even terminate the employee if appropriate under such policies.