Appealing a Denied Claim
KP68
164 Posts
What and where does it state in the regs about an employee's right to appeal the employer's denial of time off under the FMLA?
Is there a specific process or does the employer just have to provide a new Certification for the employee to complete?
Is there a specific process or does the employer just have to provide a new Certification for the employee to complete?
Comments
29 CFR 825.400 - What can employees do who believe that their rights under FMLA have been violated?
Section Number: 825.400
Section Name: What can employees do who believe that their rights under FMLA have been violated?
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(a) The employee has the choice of:
(1) Filing, or having another person file on his or her behalf, a
complaint with the Secretary of Labor, or
(2) Filing a private lawsuit pursuant to section 107 of FMLA.
(b) If the employee files a private lawsuit, it must be filed within
two years after the last action which the employee contends was in
violation of the Act, or three years if the violation was willful.
(c) If an employer has violated one or more provisions of FMLA, and
if justified by the facts of a particular case, an employee may receive
one or more of the following: wages, employment benefits, or other
compensation denied or lost to such employee by reason of the violation;
or, where no such tangible loss has occurred, such as when FMLA leave
was unlawfully denied, any actual monetary loss sustained by the
employee as a direct result of the violation, such as the cost of
providing care, up to a sum equal to 12 weeks of wages for the employee.
In addition, the employee may be entitled to interest on such sum,
calculated at the prevailing rate. An amount equalling the preceding
sums may also be awarded as liquidated damages unless such amount is
reduced by the court because the violation was in good faith and the
employer had reasonable grounds for believing the employer had not
violated the Act. When appropriate, the employee may also obtain
appropriate equitable relief, such as employment, reinstatement and
promotion. When the employer is found in violation, the employee may
recover a reasonable attorney's fee, reasonable expert witness fees, and
other costs of the action from the employer in addition to any judgment
awarded by the court.
So my next question is, should I provide her with a new Certification to complete or just leave it as denied and be done with it? What if she sends me a note from the doctor simply saying she needed that following week off? Do I have to accept that and approve it then?
If you have allowed notes to supplement certification in the past your on thin ice.
Has she seen two doctors, the ER doctor and then a second doctor? If only one doctor has seen her, I would be surprised if he/she would change their initial note, unless the employee went back a second time, still complaining of pain perhaps. If she saw a second doctor, it is possible he/she could have suggested she take more time off. Has she ever explained why she needed more time off when the original note only said one day?
I probably would take whatever form the note comes in, if she can provide one. Unless there's more to this story than we know, and the note is clear, then give her the excused absence and log it in as FMLA time for the future 12 months.
As Don D might point out, just imagine yourself on the witness stand trying to defend your actions with the plaintiffs attorney asking you to outline your professional medical experience and why you felt qualified to do what you did.
Bottom line, let the medical profession tell you if additional time is warranted. If you don't believe the first doctor, pay for a second opinion and a third to break the tie if that is necessary. Seems like a large hassle for a couple of days.
If it is an attendance issue outside of the medical situation, it will surely resurface soon enough - then apply attendance policies.