Sixth Circuit Dismisses FMLA Claim Brought After Employer’s Request for Medical Recertification

On Wednesday, the Sixth Circuit affirmed the summary judgment dismissal of an FMLA claim brought against an employer who had fired an employee for failing to satisfy the employer’s request for medical recertification of the plaintiff employee’s need for intermittent leave based on the vagueness of her doctor’s initial certification and the inconsistency with the employee’s actual use of medical leave.   Graham v. Blue Cross Blue Shield of Tennessee, Inc. , No. 12-5309 (6^th Cir.  4-3-13).  The plaintiff’s primary care physician indicated that she would only need FMLA leave a few times a month.  However, the plaintiff then missed 28 consecutive days, justifying the employer’s right to request a medical recertification.  Because the employer was not required to make this recertification request in writing, the plaintiff’s denial of receiving the employer’s written request was unimportant.  In the end, the plaintiff admitted that she had been aware prior to her termination that the employer wanted additional medical information before it would approve her extensive absences.  Therefore, she could not effectively deny that the request had been made and that she had failed to satisfy it.  

According to the Court’s opinion, the plaintiff requested intermittent FMLA leave in May 2010, for migraine headaches.  Her “medical certification stated that the expected leave frequency was one episode per month, three to four days per episode.”  However, this did not correspond with the information in the plaintiff’s leave request (where she had requested leave four times per month for 3-4 days each), so she was asked to submit additional medical information.  Her physician then increased the monthly frequency from one/month to two/month, and  increased the duration from 3-4 days to 6 days.  However, again, this did not correspond to her revised FMLA request of four episodes/month of 6 days each.  So, once again, her physician amended his certification, but now stated that “he could not ‘give a clear frequency or duration [for her absences] at this time.’”   The FMLA request was approved, but the plaintiff was notified that additional certification may be required in the future if she sought to extend her leave or otherwise as permitted by law.

After her FMLA was approved, the plaintiff then missed “the next 28 days of work, from July 14 to August 20.”  She was notified that the “frequency and/or duration” of her absences differed from her prior medical certification she was required to provide medical recertification of her need for intermittent FMLA leave.  The plaintiff denied receiving the request for recertification.  When a timely recertification was not forthcoming, the plaintiff was notified that her absences after July 23 were not FMLA-approved.   The plaintiff again denied receiving this letter.

 At some point, the plaintiff returned to work for a few days, and then missed additional work.  She admits learning at some point that her employment was in jeopardy because of excessive absenteeism under the employer’s attendance policy.  “She also alluded to speaking with Harold Gault, a human resources consultant, about the need to provide additional information from her doctor.”  The employer claimed that she had met on several occasions with supervisors about the need to submit additional medical certification, but the plaintiff denied this.    When, again, the plaintiff failed to submit a timely medical recertification to justify her continued absences, she was terminated on September 24.  By this time, she had accumulated 26 unexcused absences (although the employer’s policy provides for termination after merely 5 unexcused absences).

 The plaintiff “claim[ed] that her initial medical certification entitled her to take leave in whatever increment she chose, and that [the employer’s] reliance on her absences to justify her termination violated the FMLA.”  However, the Court concluded that the plaintiff’s “initial medical certification did not entitle her to take her remaining nine weeks of FMLA leave in the configuration of her choice.”

To hold that a medical certification for intermittent leave—which provides no estimate as to the frequency or duration of the employee’s absences—authorizes an employee to take leave in whatever increment he or she chooses would not properly balance the employee’s interests with those of the employer.

The Court explained an employer’s right to seek recertification of a serious health condition and need for intermittent leave:

An employer may “require that [an] eligible employee obtain subsequent [medical] recertifications on a reasonable basis.” 29 U.S.C. § 2613(e) (emphasis added). That which constitutes a “reasonable basis” is undefined by the FMLA itself. It is expanded upon, however, in the relevant regulations. Generally, an employer cannot request recertification more often than every 30 days “and only in connection with an absence by the employee.” 29 C.F.R. § 825.308(a). However, recertification may be requested more frequently if “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).” 29 C.F.R. § 825.308(c)(2). The following example is provided:

 [I]f a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.

Id. If the employer requests recertification, the employee has 15 calendar days to obtain the appropriate documentation. See 29 C.F.R. § 825.305(b); see also 29 C.F.R. § 825.308(d). “At the  time the employer requests certification [or recertification, it] must also advise an employee of the anticipated consequences of an employee’s failure to provide [it].” 29 C.F.R. § 825.305(d). The employer may deny the employee FMLA leave if the employee fails to submit medical certification (as long as the request complies with the FMLA). Id.; see also 29 C.F.R. § 825.313(c). While the original certification request must be in writing, “[a]n employer’s oral request to an employee to furnish any subsequent certification is sufficient.” 29 C.F.R. § 825.305(a).

The plaintiff’s 28-consecutive day absence following her approval for intermittent leave constituted a significant “change in circumstances” under the FMLA regulations.  This absence was also twice as long as any prior medical leave of absence taken by the plaintiff.

Interestingly, the employer’s FMLA policy also provided that it would request medical recertification anytime an employee missed seven or more days in a month.  The employer’s first recertification request in this case came after the plaintiff had missed seven days.  However, the Court refused to rule on whether the employer’s policy was permitted under the FMLA.  “Although it is possible that such a blanket policy may not comport with the FMLA, the district court found the 28-day stretch of absences to be operative in this case. Because we also base our decision on this consecutive period of absences, it is unnecessary to consider the propriety of [the employer’s] policy.“

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.