What REALLY happens when an employee doesn’t return completed FMLA paperwork?

I think we all need a break from the COVID-19 vaccination posts. So, let’s address your second-favorite HR topic: FMLA leave administration!!!

Hey, put down that bottle! It’s only 8 am.

I’ve got a not-so-hypothetical for you.

Let’s say that you have an employee who needs leave from work for a serious health condition. She inquiries about FMLA, and you direct her to contact the company’s leave administrator. The employee follows your instruction and contacts the leave administrator, which provides the employee with the necessary paperwork to apply for FMLA leave. The employee completes the paperwork and returns it. The leave administrator approves the FMLA leave.

So far, go good.

But then the employee seeks a leave extension, and things get a little wonky.

The first time, the leave administrator sends the employee a notice that she is “eligible” for additional leave and a recertification form for her doctor to complete. The employee never returns the form but takes additional leave anyway. Having never received the completed paperwork back, the administrator denies the leave. But, the employee continues taking leave anyway.

The second time, the employee requested additional FMLA leave through the leave administrator. But, whoops! The leave administrator forgot to enclose the necessary forms for the employee to complete. It denied her leave. A few weeks later, the leave administrator corrected its error by providing the necessary paperwork. And, this time, the employee did return it — incomplete. So, the leave administrator provided the employee with seven days to provide the missing information, which she failed to do. The employee took more leave anyway.

A month later, the employee applied for more FMLA leave — still with me? — and this time, it was approved after a new doctor submitted the proper, completed paperwork.

Several months later, the employee was fired.

Then she sued for FMLA interference.

To claim FMLA interference, a plaintiff must establish: (1) she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which she was entitled under the FMLA.

The issue here is whether the employee is entitled to FMLA leave.

According to a recent federal appellate court decision, she is not.

An employee must play by the FMLA rules to get FMLA, including returning a completed recertification within 15 days. The first time, she failed to do so. Therefore, she was not entitled to FMLA leave. The second time, she returned the paperwork, but her doctor did not complete it properly. The leave administrator gave her seven days to fix the problem, but she did not. Therefore, once again, she was not entitled to FMLA leave.

In sum, whenever the employee fully completed and returned the FMLA paperwork, she got leave. Otherwise, the law did not entitle her to FMLA leave.

So, if you stuck it out his far (nerd!), you can see where I’m going with this.

Properly documenting leave is critical to leave administration.

Plus, the FMLA is not so rigid to automatically indict an employee if it drops the ball — as long as the employee suffers no prejudice from it. Like when the leave administrator forgot to provide any paperwork for her to complete. Well, these things happen. But, the employer did not penalize the employee for taking any leave during that period, and it gave her new paperwork to complete. No harm, no foul.

Employer wins! Now go out there and conquer the FMLA leave administration world!

(Just put the sword down first. Why do you even have one in your office?)