FMLA Insights

6th Circuit: Employee Can Proceed With FMLA Claim Despite "Negative Certification"

wrp@franczek.com (Bill Pokorny) — Tue, 07 Sep 2010 14:07:43 -0600

When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment. However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the "negative certification" may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.

The Facts

Deborah Branham worked for The Dickson Herald, owned by Gannett. On November 7, 2006, Branham called her supervisor and advised that she would not be in because her son was ill. The next day, she sent an e-mail to her supervisor, Tracy Buhler, stating that her son was still sick and that she would again be absent. On November 9 and 10, she left voice messages for Buhler stating that she was sick and would be absent.

The following Monday, Branham's husband left a message for Buhler stating that Branham was still sick and that he was taking her to the doctor. Branham was examined by Dr. Singer, who found her exam to be "normal" and expected her to return to full work duty the following day, November 14. Branham called Buhler later that day and told her that the doctor had released her to come to work the following day. She also told Buhler that she still was not feeling well, and would need to be absent to attend other doctors' appointments during November and December. Buhler asked her to come into the office to fill out a short-term disability form and "see if she qualified for anything."

On November 14, Branham did not report to work, but went to the office late at night to complete an STD / FMLA form and fill out a medical certification form. Buhler faxed the certification form to Dr. Singer's office. On November 17, Dr. Singer faxed the completed certification form back to Buhler. On the form, the doctor indicated that Branham's condition began on November 10, that she could perform her full duties as of November 14, and that she did not require intermittent leave.

Branham remained absent through the Thanksgiving holiday. Although both her supervisor and HR advised her that she needed to provide a medical certification to support her absences, she did not do so. Branham did tell her supervisor that another doctor, Dr. Peters, should have filled out the form. However, the company asked both Dr. Singer and Dr. Peters to review the certification form for accuracy, and was advised that Dr. Peters had not seen Branham and would not fill out a certification for her.

On November 24, the company decided to terminate Branham's employment. A termination letter was sent to her the following Monday. At 6:00 p.m. on the following day, November 28, a nurse practitioner who had previously seen Branham sent the company a medical certification stating that Branham had an illness that began on May 6, and that she would not be able to return to work until January 1, 2007.

The Lawsuit

Branham filed suit alleging that Gannett interfered with her FMLA rights and terminated her employment in retaliation for using FMLA leave. The district court granted summary judgment to Gannett, finding that Gannett was entitled to deny her FMLA leave based upon the "negative certification" from Dr. Singer, indicating that she was not incapacitated. Branham appealed.

The Sixth Circuit Court of Appeals reversed the ruling and remanded the case to the district court for trial. The Court of Appeals held that Gannett could not rely upon Branham's failure to return a medical certification supporting her need for FMLA leave because it never properly triggered her duty to provide a medical certification in the first place. While the district court had found that Branham's supervisor orally requested a certification from her on November 13, the court of appeals held that Gannett failed to make the request in writing, as it was required to do under the applicable FMLA rules. Consequently, it could not rely upon Branham's failure to provide a medical certification as a basis for terminating her employment.

Insights for Employers

As we stressed in our most recent podcast, whenever an employee seeks FMLA leave for his or her own serious health condition or to care for a family member with a serious health condition, the best practice is to always ask the employee for a medical certification. As this case makes clear, that request needs to be made in writing, and the employee must be notified of the possible consequences of failing to provide a certification. Using the proper eligibility notice form and having a complete and up-to-date FMLA policy can go a long way toward eliminating the risk of lawsuits such as this one.
Before terminating an employee who fails to return to work despite a "negative certification" confirming that he or she is not incapacitated, employers should carefully review all of the relevant facts and circumstances to ensure that the employee has received all of the appropriate FMLA notices and had an adequate chance to provide a proper medical certification. It is far better to delay a termination by a few days than to spend the next several years defending a lawsuit.

FMLA FAQ - Is a cold or the flu a serious health condition?

wrp@franczek.com (Bill Pokorny) — Thu, 02 Sep 2010 07:00:00 -0600

Q: Can an employee take FMLA leave due to a cold or the flu?

A: Yes, if it otherwise meets the definition of a "serious health condition."

This question is confusing to many employers, and even some folks who hold themselves out FMLA experts. The source of this confusion is a misleading passage in the FMLA rules:

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

Reading this, one might assume that when an employee calls in sick with the flu, there's no need to worry about FMLA leave. That, unfortunately, is the wrong answer.

The passage above is included in the FMLA rules as an example only. It in no way limits the definition of "serious health condition." If an FMLA-eligible employee has a bad case of the flu, is incapacitated for more than three full consecutive days, and goes to the doctor and receives a prescription for antibiotics, that employee is entitled to FMLA leave. The same is true regardless of the condition, whether it is a cold or sinus infection or ear ache. If the condition meets the criteria in the rules, then it is a "serious health condition" and the FMLA applies.

This conclusion leads to an obvious question: do employers need to go through the whole FMLA process every time an employee comes down with the sniffles? Not quite. For more on that, check out FMLA Insights Podcast No. 3.

Supervisor's Statements May Entitle Employee To FMLA

wrp@franczek.com (Bill Pokorny) — Tue, 31 Aug 2010 07:00:00 -0600

To establish a claim of interference with rights under the FMLA, an employee must ordinarily demonstrate that he or she was entitled to FMLA leave. However, a recent decision by the Eighth Circuit Court of Appeals confirms that by affirmatively telling an employee that her leave is protected by the FMLA, an employer may waive its right to contest the employee's entitlement to leave. Murphy v. FedEx National LTL, Inc. (.pdf).

The Facts

Murphy and her husband both began employment with FedEx in 2006, when FedEx acquired their previous employer. In August 2006, Murphy's husband was hospitalized. He sought and was granted FMLA leave. Murphy also sought FMLA leave to care for her husband. Her immediate supervisor, Jeff Karnes, referred Murphy to the company's HR department. Per HR's instructions Murphy sought and obtained a medical certification from her husband's doctor confirming his need for leave. On August 31, 2006, FedEx granted Murphy leave to care for her husband.

On September 7, 2006, Murphy's husband died. The same day, Murphy called Karnes, told him of the death, and asked about employee benefits related to funeral and burial expenses. Murphy was noticeably distraught, so Karnes offered to get her the information she needed. Murphy then took three days of bereavement leave.

On September 11, Karnes contacted Murphy. He told her that her FMLA leave ended on September 7 and asked her how much more time she needed before returning to work. She said that she needed thirty days to "take care of things." Karnes told her "okay, cool, not a problem, I'll let HR know." He did not say whether Murphy needed approval from HR to take this leave. She did not seek any additional approval. Murphy later testified that she would have sought medical certification has she not believed that Karnes had approved her leave request. While she testified that at the time she was still crying constantly, could not sleep and had difficulty functioning, she did not tell Karnes or anyone else at FedEx about these symptoms.

On September 12, Karnes contacted an HR representative to inform her that Murphy had requested thirty days' leave to "put her affairs in order." HR denied that request. On September 15, Karnes called Murphy to inform her that FedEx had decided to terminate her employment.

The Lawsuit

Murphy predictably filed suit against FedEx, alleging among other things that the company interfered with her rights under the FMLA by denying her leave and terminating her employment. The case was tried to a jury. The court instructed the jury that it must find for Murphy if:

(1) Murphy was employed by FedEx;

(2) Murphy requested thirty days' leave from FedEx;

(3) FedEx represented to Murphy that it approved the request for leave, with reason to believe that Murphy would rely upon FedEx's representation; and

(4) Murphy reasonably relied upon FedEx's representation to her detriment.

The jury returned a verdict for Murphy. FedEx filed a motion for judgment as a matter of law or for a new trial, arguing that the court had erroneously failed to instruct the jury to find in favor of FedEx unless the jury found that Murphy had placed FedEx on notice that she may have needed FMLA leave, and that she actually suffered from an FMLA-qualifying serious health condition. The court denied the motion, and FedEx appealed to the 8th Circuit.

On appeal, the 8th Circuit agreed with FedEx that the district court erred, finding that before Murphy could invoke her rights under the FMLA, it was necessary for her to demonstrate that she put FedEx on notice that she needed leave for an FMLA-qualifying reason. Accordingly, the court found that FedEx is entitled to a new trial. However, it rejected FedEx's argument that it was entitled to judgment as a matter of law, holding that Murphy presented sufficient evidence from which a reasonable jury could conclude that she needed FMLA leave. The court noted that by itself, Murphy's statement that she needed thirty days to "take care of things" would not suffice. However, the record included other facts that "taken in their totality" could be enough to support Murphy's case. Specifically, the court found that the sudden death of Murphy's husband, the fact that she was noticeably distraught, and that she had said that she was unable to work the night shift because it reminded her of her husband could be sufficient to place FedEx on notice of her mental state. Further, the court noted that Murphy's request for additional leave occurred during a brief conversation in which Karnes told her that her FMLA leave had expired and asked if she required additional leave. The court found that a jury might reasonably interpret this as a request for additional FMLA leave.

Insights for Employers

This case again emphasizes the low bar for providing notice of the need for FMLA leave. Aside from the fact that she was upset by the death of her husband - which one might reasonably assume is a normal, healthy reaction to the loss of a loved one rather than a medical condition - FedEx had almost no information suggesting that Murphy might have an FMLA-qualifying serious health condition. Nevertheless, in light of cases such as this, it may be prudent for employers dealing with employees who have suffered traumatic events to take steps to determine whether the FMLA applies to any request for leave.
The situation in this case may not have been as clear-cut for the HR and management personnel involved in the decision as they appear from the 8th Circuit's opinion. However, if the facts were as stated in the decision, it appears that FedEx might have avoided this lawsuit if, instead of immediately terminating Murphy's employment, it had advised her that her leave request was denied and given her a chance to come back to work or properly request an extension of her FMLA leave.
This case also demonstrates the importance of properly training supervisors about how to communicate with employees regarding leave requests. Murphy's case hinged upon Karnes's statement that her request for 30 days leave would not be a problem and that he would take care of notifying HR. If supervisors do not have authority to grant leave requests, then it is important that they be instructed to clearly advise employees that they need to contact HR for approval, and not to make commitments that may later bind the company.

Podcast No. 15: Medical Certifications - Why, When and How?

wrp@franczek.com (Bill Pokorny) — Thu, 26 Aug 2010 07:00:00 -0600

The medical certification is perhaps the employer's most important tool for managing FMLA leave. Unfortunately, many employers simply don't use the certification process, or don't use it properly. In this podcast, we discuss why medical certifications are important, when and how to request them, and what to do when an employee fails to return a complete and sufficient certification within the allotted time.

FMLA FAQ - What To Expect When The DOL Comes Knocking

wrp@franczek.com (Bill Pokorny) — Tue, 24 Aug 2010 12:08:42 -0600

Q: I have reason to believe that a former employee is going to file a complaint with the Department of Labor. What should I do?

A: Review your files and start getting ready to respond to requests for information.

In this situation, you have an advantage: you know or at least suspect that a DOL investigation may be coming. In many cases, the first word an employer receives of an impending investigation will be a telephone call or letter from a DOL investigator asking for information. Use this lead time to get your files in order.

If the DOL does get involved, you can expect them to ask for the following:

Relevant jurisdictional information. This may include your organization's proper legal name and ownership structure, the number of employees in your organization, the location and number of employees at each location, and total revenue or income figures.
Copies of all relevant policies, including your FMLA, attendance, vacation, sick leave, and other leave of absence policies.
Copies of all notices provided to the employee regarding FMLA leave, and all correspondence, certifications, and other documents relating to FMLA leave over up to the last three years.
The employee's time, attendance and payroll records for up to the preceding three years, including a record of all FMLA leave used by the employee.
Records of premium payments for employee benefits.
Other items in the employee's personnel file.

Depending upon the nature of the allegations and the DOL's interest in the case, the investigation could expand beyond the complaining employee. In an extreme case, the DOL may conduct an audit of all FMLA leave requests over the last several years. If your files are in disarray, now is the time to get them in shape.

It would also be wise to advise the organization's employment counsel that a DOL investigation may be imminent. When the DOL does make contact, notify legal counsel immediately, and work with counsel to respond to any requests for information.

Upcoming Webinar: Identifying, Managing & Preventing FMLA Abuse

jsn@franczek.com (Jeff Nowak) — Thu, 19 Aug 2010 13:49:32 -0600

When: Wednesday, September 29, 2010 (12:00 - 1:15 p.m. CDT)

On-line registration: Click here

What we will cover: Given the complexities of the Family and Medical Leave Act, employers often fall prey to dishonest employees who take advantage of their FMLA rights by seeking intermittent leave to avoid discipline for poor attendance or by requesting leave for reasons not covered by the FMLA.

In this complimentary webinar, co-hosted by our law firm, Franczek Radelet, and the Society of Human Resource Professionals (Chicago SHRM chapter), I will identify and address a number of difficult issues employers face under the FMLA, including:

Identifying and understanding the most common forms of FMLA abuse
Utilizing the changes in the FMLA regulations to help fight FMLA abuse
Documenting FMLA situations effectively to curb FMLA abuse
Handling a main culprit of FMLA abuse--intermittent FMLA leave
Managing FMLA abuse situations and conducting appropriate investigations into potential abuse
Implementing must-have personnel policies to prevent FMLA abuse

I will be presenting with Teri Hock, an experienced HR professional and SHRP member, and together, we will address real-life FMLA situations in an interactive format. We will allow time to address any specific FMLA abuse situtations you face. Feel free to email me questions in advance at jsn@franczek.com.

FMLA FAQ - When to ask for a Second Opinion

wrp@franczek.com (Bill Pokorny) — Tue, 17 Aug 2010 13:50:56 -0600

Q: An employee has asked for intermittent FMLA leave due to a serious health condition. He has turned in a medical certification, but the doctor who signed it is his general practitioner, not a specialist in the condition for which he is seeking leave. Can I ask for a second opinion?

A: Yes, but be sure you understand the procedure.

The FMLA rules say that an employer can ask for a second medical certification if it "has reason to doubt the validity of a medical certification." The rules do not specify what type of "reason" will suffice. It may be that you simply do not trust the employee, that the doctor has a reputation for writing dubious medical certifications, that the leave the employee is asking for is disproportionate to the condition, or any other reason. That the doctor providing the certification is not an expert in the relevant field could also be a legitimate reason to ask for a second opinion.

This does not, however, mean that employers should make a practice of asking for a second opinion every time an employee seeks FMLA leave. First, second opinions are always at the expense of the employer. This includes not only the cost of the evaluation itself, but also the employee's reasonable out of pocket travel expenses. Second, even if the second opinion conflicts with the initial certification, the issue will not be resolved. Rather, the employer must pay for yet a third opinion, which is final and binding.

In light of the costs and the likelihood that a second or third opinion will, in most cases, simply confirm an employee's entitlement to FMLA leave, the second opinion option should generally be reserved for particularly questionable leave requests.

New Law Modifies Military Family Leave In Illinois

wrp@franczek.com (Bill Pokorny) — Thu, 12 Aug 2010 14:39:34 -0600

The Illinois Family Military Leave Act allows eligible employees who are the spouse or parent of a person called to military service to take unpaid leave during the family member's military service. Under the law, employees who work for an employer with more than 50 employees may take up to 30 days of leave. Employees working for employers with 15 to 50 employees can take up to 15 days of family military leave. Presently, this leave is in addition to the family military leave leave available under the federal Family and Medical Leave Act.

A new law recently signed by Governor Quinn amends the Family Military Leave Act to extend leave to children and grandparents of service members as well as spouses or parents. However, if an employee also uses "qualifying exigency" leave under the FMLA, the amount of leave available under the Illinois law will be reduced by the number of days the employee takes under the FMLA.

The amendment takes effect January 1, 2011.

FMLA FAQ - Leave for cosmetic surgery

wrp@franczek.com (Bill Pokorny) — Thu, 12 Aug 2010 13:20:05 -0600

Q: An employee has advised that she needs to take leave for cosmetic surgery. Do I have to grant the leave?

A: It depends on the procedure.

If the procedure is related to a medical condition that otherwise qualifies as a "serious health condition" under the FMLA, then the answer is definitely yes. So, for example, reconstructive surgery following a serious injury or illness would very likely qualify for FMLA leave.

The rules do provide that "conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not 'serious health conditions' unless inpatient hospital care is required or unless complications develop." Thus, FMLA leave is generally not available for purely outpatient cosmetic procedures. However, the rule suggests that FMLA leave would be available for a purely cosmetic procedure if the procedure involves an overnight stay in the hospital or results in complications that otherwise meet the definition of "serious health condition."

FMLA Inclusion Act Introduced in Congress . . . again

jsn@franczek.com (Jeff Nowak) — Tue, 03 Aug 2010 11:51:00 -0600

Is the fifth time the charm? On July 30, 2010, U.S. Senator Richard Durbin introduced the Family and Medical Leave Inclusion Act, which would broaden the Family and Medical Leave Act to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent who has a serious health condition. S.B. 3680 (pdf) is nearly identical to H.B. 2132, which has been pending in the U.S. House of Representatives, and that (based on our count) has been introduced in the House on four occasions. What's notable about S.B. 3680, of course, is that it now is on track to be considered by the Senate for the first time.

Does this signal renewed support for a fairly drastic expansion of the FMLA (i.e., extension of eligiblity to domestic partners, adult children, siblings and grandparents)? Too soon to tell, given that Sen. Durbin is the only Senate sponsor right now. However, the Senator claims to have momentum on his side. In remarks introducing the legislation and citing the Human Rights Campaign, Senator Durbin suggested (pdf) that federally mandated family and medical leave protections keep up with 461 major American corporations, nine states, and the District of Columbia, all of which currently provide varying levels of FMLA benefits to same-sex partners.

The FMLA Inclusion Act is one of several bills pending in Congress that would further expand the FMLA. Despite the number, none has been able to gain any momentum in the 111th Congress.