FMLA regulations require that an employer tell an employee, in writing, when certification forms must be returned and the consequences of failing to do so. Recently, a federal appellate court upheld and enforced those requirements.
The FMLA certification process can be arduous for even the most diligent of employers. Regulations impose some specific notice obligations. A new Sixth Circuit ruling emphasizes how important dotting all the i's and crossing all the t's are to compliance with the Act. Specifically, failure to provide a "return by" date on the FMLA notice form or otherwise notify an employee in writing that leave may be denied if medical certification is not provided within the allotted time may preclude an employer from denying leave under the Act.
FedEx discharged an employee in accordance with its attendance policy when she failed to return for two consecutive days after the conclusion of a scheduled – but unsubstantiated – medical leave. FedEx provided FMLA paperwork to the employee before she took leave, but it did not complete the employer portions of the forms. The employee did not return the completed medical certification within the required 15-day period, and she did not provide documentation to inform FedEx of her need for additional leave time beyond the initial leave period. Following her termination, the employee sued FedEx, claiming it had interfered with her rights under the FMLA. The jury sided with the employee as to liability and awarded her $173,000 in back pay.
On appeal, FedEx argued that no reasonable jury could have found the employee provided notice of her need for continued FMLA leave beyond the initial period or that FedEx interfered with the employee's rights under the FMLA. At the heart of both arguments was FedEx's contention that by failing to return medical certification forms within the 15-day period, the employee was not entitled to leave under the FMLA.
While looking closely at the case-specific facts regarding the notification process, the court also noted FedEx fundamentally misconstrued the purpose of the notice requirement under the Act. "By focusing on whether [the employee] provided enough documentation for continued leave, FedEx largely misses the point of this notice element. The relevant question is whether Wallace [the employee] provided FedEx with notice that she needed FMLA leave, not whether she provided notice that she needed a certain amount of FMLA leave." The court noted that the employee provided FedEx with a doctor's note indicating she needed to be off from work for her own serious medical condition for two weeks and then be reassessed. And, it was clear FedEx was aware this information triggered the need for FMLA leave because it presented the employee with FMLA paperwork in the presence of an in-house employment attorney. The jury's findings that FedEx had sufficient notification the employee needed FMLA leave and that the leave might extend beyond the two-week period were reasonable.
Responding to FedEx's arguments regarding the jury's finding it had interfered with the employee's rights under the FMLA, the court discussed the regulatory language permitting an employer to deny an employee's FMLA leave for failure to complete medical certification paperwork. The option to request medical certification – and to deny leave if the employee does not comply timely with the request – is premised upon the employer's fulfillment of its duty to advise the employee in writing of the anticipated consequences of failing to provide such certification. In short, if FedEx did not inform the employee, in writing, that her leave could be denied if she failed to return the completed forms, it could not then deny her leave (and ultimately terminate her) for failing to do so.
FedEx did not provide written notification to the employee of the consequences of failing to return the medical documentation. As noted, supra, the "return by" portion of the FMLA paperwork FedEx provided to the employee was left blank. The written documentation the employee's supervisor provided regarding her option to take medical leave failed to address the need for medical certification, let alone the consequences of failing to provide it. FedEx's employment attorney instructed the employee to return the paperwork within 15 days but neither stated the consequences for failing to do so nor put the instruction in writing, as required. The jury reasonably found that had FedEx complied with the regulatory requirement to notify the employee her leave could be denied if she failed to return her paperwork, she would have provided the documentation from her doctor stating she needed leave for the initial two-week period and for an additional three-week period.
FedEx's argument that the employee's violation of the attendance policy following her medical leave was an independent, legitimate reason for termination also failed because the employee's violation of the attendance policy was "intimately intertwined" with her FMLA leave and FedEx's failure to provide notice.
- To hold employees accountable for certifying their need for FMLA leave, employers must notify each employee, in writing, of the consequence of failing to provide the requested medical certification.
- As employers know too well, the onus is on them to:
- recognize an employee's need for FMLA leave;
- provide necessary paperwork to apply for leave;
- inform the employee of her rights and responsibilities under the Act; and
- determine whether the employee may qualify for additional leave time under the FMLA or the Americans with Disabilities Act at the conclusion of the leave period.
- Keep frontline managers and HR professionals up to date on FMLA paperwork and procedures to ensure the company can maximize its options when dealing with an employee who has exhausted FMLA leave or whose proffered reasons for leave are questionable.
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