Yesterday,
the Sixth Circuit Court of Appeals published a decision affirming summary
judgment for an employer in an FMLA case where the employer terminated an
employee for failing to timely provide a medical certification to support her
request for FMLA leave even though the employer did not request the
certification until 11 weeks after she began the FMLA leave -- after she
returned to full-time work and after her STD application was denied for a
portion of her absence. Kinds v. Ohio
Bell Telephone Company, No. 12-4048
(6th Cir. 7/29/13). The employee argued that the FMLA regulations required
the employer to request a medical certification – if at all -- within five days
of commencing FMLA leave unless it had reason to suspect fraud, etc. In other words, failure to request the
certification under 29 C.F.R. § 825.305(b) within five days forfeited the
employer’s right to make the request. The Court disagreed and refused to limit the
employer’s right to seek FMLA medical certification to only when it suspected
fraud. In this case, the employer only
requested medical certification when an employee’s application was denied for
STD (because the STD policy defined disability in a manner analogous to the
FMLA’s serious health condition). The denial
of the employee’s STD application gave
the employer “reason to question the appropriateness of her leave.” In short, the employer “was not
required by either the FMLA statute or the regulations to promptly exercise its
right to request a medical certification when [the plaintiff] first gave notice
of her need for leave. It instead properly exercised that right upon having
reason to question the appropriateness of her leave after [the denial of her] short-term
disability” application for the full period of her absence. “The company’s policy of
deferring such requests is actually beneficial to its employees because only
those employees taking extended leaves for medical issues who have been denied
short-term disability benefits are required to provide medical certifications.”
According to the Court’s opinion, the employee suffered
mental and physical injuries in August from an abusive relationship. As soon as she was eligible for FMLA leave on
October 12, she took time off work, but did not begin seeing her social worker
for several weeks (who treated her for depression). The employer’s policy for long-term medical
absences provided that a short-term disability application would be automatically
submitted and the FMLA medical certification would only be sought in the event
the STD application were denied. It also always approved the first week of FMLA
leave, regardless of whether a medical certification was provided. The employee
returned to part-time work on December 15.
When the employee returned to work full-time on December 29 and her STD
application was denied for the first three weeks of her leave, the employer
requested her to submit the FMLA medical certification for the period between
her second week of leave and when she began receiving mental health treatment. She did not timely submit the certification
form (despite an extension) and did not explain why her doctor submitted the
form almost a month late. Accordingly,
she was terminated for failing to submit a timely certification form.
The employee argued that the FMLA regulations generally
require an employer to seek medical certification within the first five days of
learning of the need for FMLA leave and the employer right to request the
certification if forfeited unless it later has reason to expect fraud. In particular, the regulation provides in
relevant part that:
In most cases, the employer should request that an employee
furnish certification at the time the employee gives notice of the need for
leave or within five business days thereafter, or, in the case of unforeseen leave,
within five business days after the leave commences. The employer may request
certification at some later date if the employer later has reason to question
the appropriateness of the leave or its duration. The employee must provide the
requested certification to the employer within 15 calendar days after the
employer’s request, unless it is not practicable under the particular
circumstances to do so despite the employee’s diligent, good faith efforts or
the employer provides more than 15 calendar days to return the requested
certification.
29 C.F.R. § 825.305(b).
The Court disagreed that the employer’s right to delay the request
was limited to cases of fraud:
[T]here is nothing in the text of the FMLA
statute or regulations indicating that the discovery of employee fraud is the only
acceptable reason for an employer to request a medical certification after the
five business-day period following an employee’s notification of leave. In
fact, [the plaintiff] cites nothing in the statute or the regulations that
makes any reference at all to employee fraud. Nor does she cite any case law to substantiate this highly
narrow and nontextual reading of 29 C.F.R. § 825.305(b). We decline to adopt a
regulatory interpretation so devoid of any statutory, regulatory, or
precedential basis.
. . . . denial of [the
plaintiff’s] disability claim for the period in question, while not sufficient
to deny outright her request for FMLA leave, provided an adequate “reason to
question the appropriateness of the leave.” See 29 C.F.R. § 825.305(b).
The standard for disability status under [the employer’s] short-term disability
insurance policy is similar enough to the “serious health condition” standard
for FMLA leave that denial of the former at least raises a question as to the
appropriateness of the latter.
The Court
refused to consider whether the plaintiff actually suffered a “serious health
condition” for the period in question “because the failure to provide a
medical certification is an independent basis for denying FMLA leave notwithstanding the appropriateness of
that leave.”
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.
