Lack of certification can doom an FMLA claim

Posted April 5, 2024

Processing a request for leave under the federal Family and Medical Leave Act (FMLA) usually includes asking employees for a certification supporting the need for leave. If employees do not supply a requested certification, employers may deny the FMLA protections, and employees won’t have much of an argument that their FMLA rights were violated.

Case in point

Such was the situation of Gina, who emailed Allen, her boss, asking for about three weeks off for some personal issues. Allen responded but got no reply. A week passed and Allen forwarded Gina’s email to the HR department. HR contacted Gina and asked her to provide an FMLA certification.

Gina struggled to find a doctor who would complete the certification by its due date, so HR gave her extra time. When Gina realized that her doctor wanted to see her for more appointments before certifying the leave, she returned to work. She never supplied a certification.

During all this, the company went through some changes, resulting in a few positions being cut. Gina’s coworker, who performed the same duties, was more productive. Therefore, the company decided to eliminate Gina’s position.

After being fired, Gina sued, claiming that the company violated her FMLA rights. The district court ruled in favor of the employer, indicating that Gina’s failure to provide the requested certification doomed her claim.

Gina appealed the district court’s decision, but the Appeals Court agreed with the decision.

The court pointed out that Gina failed to present evidence that she exercised a protected right under the FMLA. She gave only a return-to-work notice. Therefore, said the court, “the leave that she did take was not under the auspices of the FMLA.”

Put this information to work

Employers can put this type of information to work in their favor. It supports denying FMLA leave when employees do not return a requested certification. The FMLA regulations bear this out as they say that “If the employee never produces the certification, the leave is not FMLA leave.” [29 CFR 825.313(b)]

Employers can include this type of information with a request for certification and in an applicable company policy.

When asking for a certification, employers may remind employees clearly that, without a certification, they risk their FMLA protections, which could result in losing their job (not to mention a claim).

Magwood v. Racetrac Petroleum, Inc., 11th Circuit Court of Appeals, No. 22-12501, March 25, 2024.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.