FMLA leave requests not always black and white
Posted September 18, 2015
All too often employers receive Family and Medical Leave Act (FMLA) certifications that do not provide enough clear information to determine whether or not the employee’s reason for requesting leave would qualify for FMLA protections. While some certifications might truly indicate that the reason does not qualify — perhaps that the employee or the family member does not actually have a serious health condition — others are not that black and white. One employer learned the difference and what is expected.
Case in point
An employee began experiencing shortness of breath, nausea, and vomiting for reasons unknown. Her doctor completed a certification requesting intermittent leave at twice per week for about one month. The employee began taking the days off.
The employer, however, denied the employee’s FMLA leave request because, it felt, the condition did not qualify as a serious health condition. It didn’t appear to be a chronic condition because the certification indicated that the leave was required for only one month. It also failed to specify whether the probable duration of one month referred to the duration of the leave request, the duration of the medical condition, or both. Because her absences were unexcused, the employee was terminated. She was soon thereafter diagnosed with diabetes and high blood pressure.
The employee sued, arguing that the employer should have identified deficiencies in the certification and provided her an opportunity to address them. Had the employer requested that her physician provide more information, he or she would have been in a position to provide the required information.
The employer argued that it was not required to be clairvoyant; the short duration led them to believe that the employee was not suffering from a chronic condition. The post-termination diagnoses foreclosed the employee’s ability to establish that she had a chronic condition at the time she requested leave. The court, however, indicated that receipt of an insufficient or incomplete certification triggers certain regulatory obligations on an employer that are unrelated to its understanding of the employee’s health condition:
“If the employer determines that a certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification. But it may only do so if it has provided the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.”
The certification did not clearly indicate that the employee’s condition was not a serious health condition; it didn’t include enough information to make that determination. Therefore, it did not on its face disqualify the employee from FMLA entitlement. A sufficient certification for intermittent leave must address both the expected duration of the intermittent leave and the probable duration of the condition. The last piece was missing, so the certification was incomplete and/or insufficient.
The court concluded that employers must advise their employees of deficiencies in their certifications and provide them with an opportunity to cure. The employer ignored these requirements and, instead, terminated the employee.
When it comes to conditions that are not yet diagnosed, an employee’s physician may need some additional time to provide the required elements of a sufficient certification, including more specific information regarding relevant medical facts and the probable duration of the condition, the planned medical treatment, and the intermittent leave. As this case illustrates, the difference between a medical certification that supports leave and one that is deficient might be a matter of days.
Nothing in the statute or implementing regulations prevents the cure period from functioning as a grace period for an employee to obtain such information; on the contrary, they compel it.
Hansler v. Lehigh Valley Hospital Network, No. 14-1772, Third Circuit Court of Appeals, August 19, 2015.
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