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Employee refuses FMLA! South Dakota

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  • ElleMD
    replied
    Yes but you can't force them to do so. You can't march them to the doctor and insist they get the forms completed. When you hit a stalemate, your options are to use the knowledge you do have to designatte the leave as FMLA or take your chances denying it because they didn't turn in a piece of paper. Before going the denial route, I'd want my legal counsel on board.

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  • WorkHorse
    replied
    Fmla

    I never said anything about denying FMLA. All I said was that the employee needs to provide proper documentation.

    Leave a comment:


  • cbg
    replied
    The point is that you're better off occasionally approving something that doesn't qualify, than you are denying something that does. You can always use tentative approval and withdraw it if you find something really doesn't meet the requirements. But which do you think the DOL is going to go easier on you for; granting protection when you really didn't need to, or denying protection when you did?

    Leave a comment:


  • WorkHorse
    replied
    Fmla

    I'm not sure how you can be certain the FMLA leave request is valid without proper documentation. I am currently tracking over 20 employees who are on FMLA leave, it's difficult for my company to cover the shifts with so many people missing. It makes sense that employees are required to submit the proper documentation to prove that they qualify for FMLA.

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  • cbg
    replied
    Workhorse, please remember that most of us responding here are also responsible for designating FMLA, and in some cases have been doing it ever since it was signed into law. We are aware of the pitfalls; we are also aware that FMLA is very much an employee-oriented law and it's much more likely that an employer will be penalized for not designating FMLA than they will for not having proper documentation.

    Leave a comment:


  • WorkHorse
    replied
    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.

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  • ElleMD
    replied
    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.

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  • WorkHorse
    replied
    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.

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  • Pattymd
    replied
    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.

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  • ElleMD
    replied
    Key employees must still be allowed to take leave, they just aren't guaranteed the same job when they return.

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  • Pattymd
    replied
    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

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  • TSCompliance
    replied
    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?"

    Leave a comment:


  • cbg
    replied
    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.

    Leave a comment:


  • ElleMD
    replied
    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.

    Leave a comment:


  • ScottB
    replied
    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.

    Leave a comment:

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