Employees who are eligible for the Family and Medical Leave Act (FMLA) can take up to 12 weeks of leave for a serious health condition or another qualifying reason. But what happens if they stop answering your calls and emails, fail to return to work, or don’t provide a medical certification from their health care provider?
Although it’s important to respect an employee's FMLA rights and adhere to FMLA regulations, you do have some recourse in cases of FMLA abandonment.
Here’s how HR teams can use a leave management platform to track FMLA leave, centralize employee communications, and navigate FMLA abandonment.
FMLA abandonment refers to a scenario in which an employee takes FMLA-protected leave but doesn’t return to work as planned or respond to communications from their employer. In most cases, employees can take up to 12 weeks of leave in a 12-month period for any of the following reasons:
Eligible employees are entitled to reinstatement in their role or in an equivalent position, and they can’t be fired while on leave. They must also be allowed to keep their health benefits while on FMLA leave. But what if they cut off communication or don’t come back to work? Here are three ways that might play out in practice.
Let’s say an employee took unpaid leave to deal with a medical condition. Their initial leave request was for three weeks of FMLA leave, but their expected return date has come and gone. Is this a case of FMLA abandonment?
That depends. Since an employee’s FMLA leave entitlement can extend up to 12 weeks, it’s possible that they’re still covered by it. Maybe their medical treatment and recovery is taking longer than expected, but they still plan to return to work.
If it’s been more than 12 weeks, then it might meet the criteria for FMLA abandonment — but could still be protected by other leave laws.
Another common scenario is that an employee doesn’t respond to calls or emails while they’re on leave. Although you aren’t allowed to ask an employee to work while on a leave of absence, you can ask them to provide basic information or complete basic tasks, like sharing access to an online account or document.
In some cases, an employee might fail to respond to messages before qualifying for FMLA leave — for example, they were admitted to the hospital unexpectedly and only informed you several days later. In this case, they may still qualify for FMLA once you process their paperwork and send them an FMLA designation notice.
Always make multiple attempts to reach an employee before terminating them, and seek legal advice if you think it may be a case of FMLA abandonment.
Employers are allowed to ask for a medical certification from a health care provider to confirm an employee’s eligibility for FMLA. According to the U.S. Department of Labor’s Fact Sheet #28G, you can request a recertification no more than once every 30 days.
Employees have 15 calendar days to provide a certification after you request it. If they don’t, then you can deny them FMLA protections for the subsequent period. Consider providing a grace period if the employee can’t provide it for medical reasons.
Failing to provide a medical certification isn’t necessarily a case of FMLA abandonment, but it does mean the employee could lose their FMLA protections.
Covered employers — including public and private schools, public agencies, and private employers with 50 or more employees — must honor employee rights under FMLA and avoid terminating them or penalizing them for taking job-protected leave.
If an employee loses their FMLA protections due to job abandonment, then you could have grounds to terminate them. But consider these possibilities first:
Keeping up with leave laws is hard enough without having to worry about unexplained absences. By digitizing your leave of absence process with Pulpstream’s cloud-based platform, you can centralize and automate employee communications and reduce the likelihood of FMLA abandonment. Here are just a few benefits.
Pulpstream allows you to centralize your employee communications all in one place and store documents securely. Whether you’re collecting FMLA forms or requesting medical certifications, Pulpstream’s digital workflows ensure accuracy and consistency.
Employees can log in using a self-service portal to upload their documents securely and check their remaining leave balance from their desktop or mobile device.
Even the most organized human resources team can struggle to stay on top of FMLA paperwork. With automated reminders, you can get notified every time an employee’s leave status changes or when you need to request a recertification.
Pulpstream supports notifications by email, SMS, and more, ensuring that everyone knows what paperwork is required of them and when it’s due.
Whether a case ends in FMLA abandonment or not, it’s important to maintain a paper trail to document your actions as an employer. In one case, the U.S. Equal Employment Opportunity Commission (EEOC) sued an employer for treating an employee’s absence as a “voluntary resignation” once their FMLA leave expired.
You might follow these steps to show that you’ve done your due diligence and made a good faith effort to contact an absent employee:
By keeping a record of each attempt and any response, you’ll reduce the risk of FMLA abandonment and be able to back up your decisions as an employer.
The Family and Medical Leave Act (FMLA) provides employees with up to 12 weeks of leave for certain qualifying reasons. If an employee fails to respond to calls or emails, or doesn’t return from FMLA leave, it may be a case of FMLA abandonment. Always make multiple attempts to contact an employee before terminating their employment.
Pulpstream’s leave of absence platform helps you avoid abandonment by centralizing employee communications. Request medical documents, send out automated email and SMS reminders, and streamline the return-to-work process.
By making it easier for employees to stay in contact with you, you’ll reduce the risk of compliance issues and avoid unexplained absences.
Get a demo today to see for yourself!