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Employee refuses FMLA! South Dakota

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  • Employee refuses FMLA! South Dakota

    Good afternoon.

    I have a VP that is having surgery and refuses to sign FMLA paperwork or even acknowledge that he is on it.

    What can I tell him to convince him that it is not an option? I believe the employer decides if it will be FMLA or not.

    Thanks for any help you can give me.

  • #2
    The law does not require that he sign anything or that he acknowledge it. If he, the employer, and the medical condition all qualify for FMLA, you MUST put him on it whether he signs anything or not. It is the employer, not the employee, who will be subject to fines and penalties if he does not receive the appropriate benefit.

    You are correct that it is the employer's, not the employee's call. I'll try to find the specific link.

    What is his objection? That might help.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      He just says he's not signing a government form. He also says that next time he'll just take vacation days and we'll never know.

      He doesn't have a real reason. So, can I just write "employee refused to sign" and track the FMLA hours? If he won't sign, he also won't get the Physician's Certificate completed and returned. (There's no question about whether it's a serious health condition)

      I'll watch for the link.

      Thanks.

      Comment


      • #4
        If there's no question about it being a serious health condition, then you are compelled to use FMLA whether he agrees, signs, provides a doctor's cert, or not.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          Just send the guy a letter or memo informing him that his leave/absence time from work due to his surgery and medical condition is being attributed to FMLA. He doesn't have to sign anything or even acknowledge his absence time is FLA.

          Your VP has his head up his hinder but there's no sense getting into a tussel with him about it. HE doesn't decide whether his absence time is FMLA, the employer does.

          Comment


          • #6
            Originally posted by cbg View Post
            you are compelled to use FMLA whether he agrees, signs, provides a doctor's cert, or not.
            I don't agree with that (there is no compulsion to designate time off as FMLA), but the failure to treat all similar cases equally could come back to bite the company.
            Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

            Comment


            • #7
              As a practical matter can you appeal to the President or whomever he reports to about this? A vP who would refuse to comply with such a request and purposely put the company in jeopardy for noncompliance doesn't sound like much of a leader and certainly it sends a very clear message to the rank and file that they can dismiss these sorts of requests.
              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

              Comment


              • #8
                Scott, I suppose the employer could fail to utilize FMLA and then claim that they're justified because the VP failed to return the forms. And MAYBE it would pass when the VP sues them after they fire him for not returning from leave under the company policy.

                But where they already know the condition qualifies, failure to designate the time as FMLA has the very real potential of coming back to bite them in a very unpleasant place.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  I agree with Elle. The President, CEO, or Board of Directors might not be happy with an executive who sets such a bad example. Leaders lead by example, and their behavior overshadows what they say to people.
                  What if one of his employees decided to follow his example and not sign a
                  W-4, I-9 or other "government form?"

                  Comment


                  • #10
                    Of course, it's also likely this VP may qualify under the "key employee" exception.

                    "Key" Employee Exception
                    Under limited circumstances where restoration to employment will cause "substantial and grievous economic injury" to its operations, an employer may refuse to reinstate certain highly-paid, salaried "key" employees. In order to do so, the employer must notify the employee in writing of his/her status as a "key" employee (as defined by FMLA), the reasons for denying job restoration, and provide the employee a reasonable opportunity to return to work after so notifying the employee.
                    http://www.dol.gov/esa/regs/compliance/whd/1421.htm#2m
                    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                    Comment


                    • #11
                      Key employees must still be allowed to take leave, they just aren't guaranteed the same job when they return.
                      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                      Comment


                      • #12
                        Right, just wanted to point out that there was an exception for the return, since that was mentioned as a possible law suit in the making.
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                        • #13
                          FMLA requirements

                          I am responsible for providing information and tracking of FMLA forms where I work, I often refer to the book "Understanding the Family Medical Leave Act" by Will Aitchison. In it he states " the right to FMLA leave depends upon the employee submitting some form of request for the leave to the employer" and "where the leave is foreseeable based on planned medical treatment the employee must provide 30 days notice of the intent to use FMLA leave. It is the employees responsibility to provide medical documentation in order for the company to approve. FMLA was enacted to protect a worker's job in the event of a serious health condition, but the employee must involve himself in the process.

                          Comment


                          • #14
                            Until the courts recognize that an employee failing to turn in a piece of paper equals no FMLA obligation, I'm going to designate regardless.
                            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                            Comment


                            • #15
                              Fmla

                              In place to prevent FMLA abuse - 29 C.F.R. 825.305 - "The DOL grants the employers the authority to require FMLA eligible employees to provide medical certification of their own or their family members health condition."
                              Without proper documentation you are going on someone's word that they or their family member has a serious medical condition. It's okay to track FMLA hours until the documentation is provided, but the documentation is necessary.
                              Last edited by WorkHorse; 07-01-2007, 06:43 PM.

                              Comment

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