A Cautionary FMLA Tale: “Let Them Fix It Before Firing” Must Employees Now Be Allowed to Cure Deficient Medical Certifications?
Compliance with the Family Medical Leave Act (“FMLA”) is a daily challenge for employers, as more and more employees seem to take advantage of the right to full and intermittent leave. I often see clients jump to hasty conclusions about FMLA entitlement, or deny leave or terminate employees, without fully analyzing whether they have complied with all of the FMLA’s requirements or done a full review of whether the employee was entitled to leave. A recent decision by the Third Circuit just made that compliance more challenging, allowing an employee who seemingly did not even have a diagnosis of a covered FMLA medical condition get to a jury on an FMLA “interference” claim.
On June 22, 2015, the Third Circuit reversed summary judgment for the defendant in Hansler v. Lehigh Valley Health Network, 2015 U.S. Dist. LEXIS 10444, (3d Cir. Pa. June 22, 2015). Deborah Hansler had requested FMLA leave by submitting a medical certification that did not identify her “serious health condition” or its duration. The employer denied the FMLA leave, without giving her a chance to cure the defects in the certification. She missed several days of work and was later fired. Notably, Ms. Hansler wasn’t even diagnosed with an illness (diabetes and high blood pressure) until after she was fired.
Ms. Hansler sued for FMLA interference and lost at the District Court level. The Third Circuit reversed the dismissal, and held that because the employer failed to give her an opportunity to cure the insufficient certification, she had viable FMLA interference and retaliation claims. Clearly, this was not a good result for that employer. More importantly, it suggests that employers must offer employees this opportunity to cure a deficient certification, before they deny leave or terminate – even when it is unclear that the employee has a qualifying FMLA-covered illness.
The FMLA was passed by Congress to “balance the demands of the workplace with the needs of families,” and provides that eligible employees are entitled to 12 work weeks of leave during any 12-month period if the employee has a “serious health condition” rendering the employee unable to perform her work duties. Before taking leave, an employee must give her employer notice of the leave request, and provide a medical certification containing several key pieces of information, including relevant medical facts, dates and duration of any planned medical treatment, and the expected duration of the intermittent leave.
There are several troubling aspects to this ruling. First, there was no dispute that Hansler’s initial certification was deficient. For one, it did not identify her “serious health condition.” Then again, how could it? Hansler wasn’t diagnosed when she submitted the leave request. In her complaint, however, Hansler claimed that Lehigh Valley interfered with her rights by firing her, without giving her a chance to cure those deficiencies. Under 29 U.S.C. §2615(a)(1), employers are prohibited from “interfere[ing] with, restrain[ing], or deny[ing] the exercise of or attempt to exercise” rights granted under the Act. In asserting a viable interference claim, the employee must demonstrate that she was denied benefits under the Act. While the District Court reasoned that Hansler’s certification was “negative,” it indicated that she lacked a chronic serious health condition. The Court of Appeals found that while the certification was insufficient, she was entitled to a cure before her termination.
The distinction between “negative” and “insufficient” was important, as a “negative” certification gives you no FMLA rights while an “insufficient” certification notifies the employer of a need for leave, but may just need to be corrected. In reaching its conclusion, the Court found that cases addressing negative certifications were not persuasive, given that case law on negative certifications largely involves certifications containing affirmative statements by physicians that the employees would not miss work on account of their medical conditions. In contrast, Hansler’s certification contained no such statement, but instead was ambiguous by failing to specify whether the “one-month” period mentioned in the certification referred only to the length of her leave request or to the duration of her condition. Thus, her certification was “insufficient” rather than “negative,” entitling her to a cure period that she never received.
The Court also rejected Lehigh Valley’s argument that it had no reason to know Hansler had a serious health condition when she applied for the leave. The Court held that while FMLA does not require the employer to be “clairvoyant” about the duration or trajectory of its employees’ illnesses; the question at hand was simply whether the certification was insufficient or incomplete at the time of the leave request. Notably, the Court also found Lehigh Valley’s point that Hansler was diagnosed with her illnesses after she was fired irrelevant to the issue of whether her medical certification was insufficient.
As the dissent noted, the majority opinion now puts any employer who denies a leave request based on an insufficient certification at risk of a FMLA interference claim. So what should you do? There are some simple steps to take:
• First, do not grant a FMLA leave unless you are given a sufficient certification and are satisfied that the employee has a serious health condition. Remember, once leave is granted it is very difficult to ‘undo’, even if you later doubt the legitimacy of the request or believe the original certification was faulty.
• If you receive an insufficient certification, give the employee the opportunity to cure, by stating in writing what additional information is needed to make the certification sufficient. FMLA provides for 7 days. This period of ‘certification’ is again your only opportunity to challenge insufficient documentation. Once the leave is granted, that opportunity is lost or severely limited.
• If the deficiency is not cured, then you may deny leave on the basis of an inadequate certification.
• While employees are on FMLA leave, monitor the leaves and be aware of your right to request re-certification, if the absences don’t match the prediction in the original certification. Be sure to check FMLA regulations and be aware of when and how often you can request re-certification.
• Before you terminate an employee for attendance issues who has been denied FMLA leave – BE CAREFUL. Review the employee history with a lawyer who understands FMLA and make sure there have been no missteps.
• Last, make sure your HR and leave professionals are well trained on FMLA. FMLA is a challenging statute. However, with proper training and monitoring, employers can both manage their workforce, comply with the law, and avoid a bad result like the Hansler decision.
Veronica Montalvo, a law clerk with Kelley Drye & Warren LLP, assisted in the drafting of this post.