Sixth Circuit Revives FMLA Claim Where Employer Forgot to Specify When Medical Certifications Were Due

Last week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an FMLA claim (where the employer failed to properly complete the FMLA Eligibility Notice), but affirmed dismissal of the disability discrimination claim where the plaintiff failed to specifically request a reasonable accommodation other than the FMLA leave.   Pearson v. Cuyahoga County, No. 14-3197 (6^th Cir. 12-30-14).  In this case, the plaintiff suffered from a number of serious medical conditions which were covered by FMLA medical certifications.   When one of his intermittent absences exceeded the general pattern, the employer requested a recertification, but failed to specify a deadline or explain the consequences of failing to meet the deadline.  In any event, his absence was approved.  He then called off again and mentioned a new medical ailment (which resulted in a new Eligibility Notice being sent which again failed to notify him that he was required to produce a medical certification by a specific deadline because the employer forgot to check any boxes on the form).   When his recertification and new certification were not timely provided, he was terminated (even though the forms were ultimately provided before his pre-disciplinary hearing concluded).   The Sixth Circuit concluded that there was a factual dispute about whether his absences were properly covered by his FMLA medical certifications, whether the employer could enforce the 15-day deadline when it had not strictly enforced it in the past, had failed to notify him in writing of the certification deadlines and had waived the recertification requirement for some of his prior absences.  Employers are reminded to complete the Eligibility form and ensure that the employee is notified in writing of what documents must be produced and by a certain date if the employer intends to enforce the potential 15-day deadline in the FMLA regulations.

According to the Court’s opinion the plaintiff was absent from work and produced return-to-work medical slips concerning multiple medical conditions, including gout, arthritic hip, hypertension and low back strain in 2008.  There is no indication that any of these conditions triggered the FMLA and he was issued a written reprimand in July 2008 for missing 10 hours of work in a two year period for these (and possibly other) reasons.  In January 2009, he was approved for 12 weeks of FMLA leave for a resurfacing of his hip in April 2009 due to severe degenerative joint disease.  He was suspended for three days in June 2010 for missing another 10 hours of work and then was approved for intermittent FMLA leave due to continuing problems with his hip.  In December 2011, he was approved again for intermittent FMLA leave for multiple medical conditions involving his kidneys, hypertension, back pain and hips.  His physician indicated that he require FMLA leave once each month for 3-4 days, but that this was unpredictable and unstable. 

The plaintiff sought FMLA leave for 9 consecutive days in February 2012.  The County wrote him to remind him to bring a return-to-work certification (for every absence of more than 3 days) and requested him to recertify his FMLA leave because his 9-day absence was longer than the 3-4 days in his FMLA medical certification.   Notably, the County did not place a deadline on the recertification or explain the consequences of failing to provide the recertification.  The County also sent him an FMLA Eligibility Notice about being eligible as of February 6, and which specified a February 24 deadline, but did not check any of the boxes in Part B about what he was to provide prior to February 24.  The plaintiff did not provide the recertification information until April 24, but the County approved his absence under the FMLA through February 9, 2012.

At the end of February, the plaintiff missed four more days of work.   The County claims that he called off for chest pains (which was not an FMLA approved reason under his prior medical certifications).  The plaintiff says that he initially called off for hip pain (which was covered by his FMLA medical certification) and then the last day (Friday) was chest pains, which caused him to immediately schedule an appointment with a cardiologist for that Monday and request new FMLA paperwork.   However, upon his mentioning chest pains, the County designated his entire absence as unapproved and began proceedings to terminate his employment under its attendance policy (even though it sent him the requested FMLA paperwork for the cardiologist on Monday to cover the entire period of his absence).  Again, the FMLA paperwork noted that he was eligible for FMLA leave and also failed to identify what information he needed to produce in order to qualify for FMLA leave.  In other words, he was never informed in writing that he needed to produce a medical certification of his cardiac condition by a certain date or risk his FMLA leave being denied.  The plaintiff claimed that he immediately faxed the forms to the cardiologist, who promptly completed and dated them on February 29.  However, the County denied receiving them until April 26 – the date of the plaintiff’s pre-termination hearing.    Moreover, the County admitted that it had never informed the plaintiff that it failed to receive a timely medical certification.   This seems logical since the plaintiff had produced a return-to-work slip from the cardiologist on February 27 releasing him to return to work without any medical restrictions.  Nonetheless, the FMLA certification completed by the same cardiologist two days later indicated possible flare-ups and further testing, etc.

At the pre-termination hearing, the County noted that his certifications and recertifications were tardy (i.e., beyond the 15-day deadline) and were completed after the periods of the plaintiff’s unapproved absence.  The County did not seek clarification from the physicians.  The County then terminated the plaintiff even though he had 376 FMLA hours remaining.  He was not even given paid sick time for his February absences.   The plaintiff brought suit alleging that the County discriminated against him on the basis of a disability and interfered with his FMLA rights when it terminated him, but failed to include allegations about his prior disciplinary actions being inappropriate for considering his FMLA absences.   The district court granted summary judgment to the County on the grounds that the plaintiff failed to provide timely medical certifications and recertifications.  However, the Sixth Circuit reversed since the conclusion was based on conflicting evidence:

First, although [the County’s] February 9, 2012 letter could be interpreted as alerting [the plaintiff] that his prior leave (approved in December 2011) was no longer valid by directing him “to recertify to substantiate the need for additional time off,”  . . .  the County nonetheless approved absences that were presumably covered by the February 9 request (January 30 - February 9). The County also approved absences in March 2012 under [his] December 2011 certification. Both approvals call into question whether the County actually considered the certification invalid after February 24 (the due date for recertification). In addition, [the County’s] letter of February 9 “required” a doctor’s note on Pearson’s return but merely “requested” a recertification. . . . While [the County’s] letter of February 9 requests both a doctor’s note and recertification, it fails to specify any particular documentation (beyond a note) that [he] might need to provide. Thus, there remains a question of fact regarding whether the doctor’s note satisfied the recertification request.

We also disagree with the district court’s finding that there was no question regarding the County’s reason for disapproving the February 21 through 24 absences. The County maintains it was because of [the plaintiff’s] failure to recertify, but there is conflicting evidence on this point: It appears [the County] chose not to approve those dates based on her determination that [he] was absent for a non-FMLA covered condition, i.e., chest pain. . . . . And there was at least a question of fact whether [he] reported that he was absent due to the hip condition (already certified).

 . . . Further, the district court’s determination that [the plaintiff’s] FMLA interference claim fails because Dr. Tuffuor’s recertification was “untimely” (not received by the County by February 24, 2012) was premature. FMLA compliance officer Lori Acosta testified that the County “has had employees bring in their completed [FMLA] med certs at a predisciplinary conference,” and that “[t]ypically, Cuyahoga County will not deny a request for [FMLA] if it’s not received by the 16th day. We do allow for extenuating circumstances to afford more time to provide the medical certification, particularly, if an employee indicates need for additional time, within reason.”

                . . . . 

               If [the plaintiff’s] absences from February 21 through 24 were due to hip pain as he testified, PID 327-31, (or back pain or hypertension), no doctor’s note or certification was required, and the absences should have been covered under the intermittent FMLA leave the County approved in December 2011.

Accordingly, because there was a factual dispute about whether the plaintiff’s absences were covered by the FMLA, summary judgment for the employer was held to be inappropriate on the FMLA claim.  Nonetheless, the Court affirmed dismissal of the disability discrimination claim on the grounds that the plaintiff never specifically requested a reasonable accommodation “either when he called off work on February 21 through 24, 2012,  or after he became aware that the County was contesting the validity of his FMLA leave for those absences.”

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.

Sixth Circuit Dismisses FMLA Claim of Employee Hit By Car for Lack of Specific Medical Evidence Despite Employer’s Own FMLA Violation.

This morning, a divided federal Sixth Circuit Court of Appeals affirmed the dismissal of an FMLA claim, but on different grounds than the trial court. Stimpson v. UPS, 08-2263 (6th Cir. 11/3/09). The Court found that the employee did not qualify for FMLA leave because he failed to show that he suffered from a serious health condition even though he had been injured when his bicycle was hit by an automobile, visited an emergency room, was prescribed medication and produced statements from two different physicians that he was unable to work for several weeks. Rather, the Court was influenced by the plaintiff’s failure to fill the drug prescription given to him in the ER and the lack of specificity by his medical providers. Nonetheless, the Court also rejected the argument that the plaintiff failed to give sufficient notice of his need for FMLA leave and noted that the employer violated the FMLA when it only gave the employee 72 hours to produce a medical statement under the collective bargaining agreement because the FMLA gave the employee 15 days to produce such a statement. However, the employer’s violation did not save the employee’s FMLA claim because he failed to produce the requested medical statement within fifteen days.

As described by the Court, the plaintiff was riding his bicycle (while intoxicated) when it was struck by a car around 3:30 p.m. on April 29, 2006. The motorist was cited for following him too closely. He denied medical treatment at the scene, but later visited an ER where he was prescribed medication after complaining about lower back pain and the physicians noted extensive bruising where he had collided with the road pavement in the earlier accident. He was also diagnosed with an acute lumbar strain. He was discharged 2.5 hours after checking in. Even though he never filled the medical prescription, he returned to the ER the next day because of his back pain and was promptly discharged for failing to fill his earlier prescription. There was evidence that he also notified his supervisors at UPS about his accident, but he did not return to work for about three weeks, failed to call off daily under regular UPS procedures and failed to provide medical documentation of his inability to work before May 22. UPS claims that it verbally requested medical documentation and sent him a letter requesting medical documentation to be submitted within 72 hours (as required under the CBA). When the plaintiff failed to submit medical documentation before May 12 (because, as he claimed, he had moved and did not receive the UPS letter until May 22), he was terminated.

On May 23, the plaintiff filed a grievance with the union and submitted three medical statements that he could not work until May 20. When his grievance was denied, he filed an Unfair Labor Practice Charge with the NLRB on the grounds that he was being retaliated against for his prior union activities (in that he had previously been terminated by UPS for union activities and was reinstated by court order in September 2005 after an earlier ULP Charge he filed with the NLRB). However, unlike his prior ULP Charge, the NLRB dismissed this Charge. He then filed his FMLA lawsuit.

The District Court granted summary judgment to UPS because it concluded that the plaintiff was not eligible for FMLA leave in that -- even disregarding his earlier unlawful termination – he had not worked 1250 hours in the prior 12 months and had failed to give proper notice of his need for FMLA leave. In addition, the trial court questioned whether he suffered from a serious health condition under the circumstances.

The Court of Appeals agreed with the plaintiff that there was a material factual dispute about how many hours he would have worked in the prior 12 months if he had not previously been unlawfully terminated. Even though the NLRB only required payment of a certain amount of back pay (less than 1250 hours), it failed to address the plaintiff’s claim that he would have worked additional hours and such evidence had been submitted to the District Court. Accordingly, summary judgment on that issue was inappropriate.

The Court also found sufficient evidence that the plaintiff had properly notified UPS of his accident and potential need for FMLA leave. The Court also noted that UPS acted entirely properly by notifying the plaintiff in writing that it wanted more medical information before designating FMLA leave. The Court did not address the question of whether the plaintiff was required to call off each day as required by UPS internal procedures.

However, the Court found that UPS violated the FMLA by only giving the plaintiff 72 hours written notice of the need for medical documentation:

The regulations state that “[t]he 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.” 29 C.F.R. § 825.305(b). While UPS argues that its labor agreement with the Teamsters allows it to provide a shorter time period of seventy-two hours, the FMLA expressly provides that no collective bargaining agreement, such as that UPS has with the Teamsters Union, may diminish any protection granted by the FMLA. 29 U.S.C. § 2652(b). The fifteen-day period expired on May 20, 2006, two days before [the plaintiff] submitted his medical information. However, UPS terminated [the plaintiff] on May 12, 2006, well before the expiration of the fifteen-day period. [The plaintiff] missed the deadline, but UPS had first terminated him under a mistaken understanding of the applicable deadline.

Section 2652(b) of the FMLA provides that: “The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”

Ultimately, the Court majority concluded that UPS’s mistake was irrelevant because even if he had submitted the information within fifteen days, the plaintiff failed to show that he suffered from a serious health condition. The plaintiff had never been admitted as an inpatient. His failure to fill his ER prescription also meant that he could not show a regiment of continuing care. “For example, an outpatient procedure with a follow-up appointment is not a “regimen of continuing treatment.” See Morris v. Family Dollar Stores of Ohio, Inc., No. 07-3417, 2009 U.S. App. LEXIS 6852, at *17-18 (6th Cir. Mar. 31, 2009).”

Surprisingly, the Court also found the medical statements submitted by his physicians to be deficient:

While [the plaintiff] has produced three separate notes from physicians stating that he could not return to work, the most detailed notation given on the forms is that [the plaintiff] cannot work “for medical reasons.” These notes fall far short of the requirement that any doctor’s certification must contain at a minimum “(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider’s knowledge, and (4) a statement that the employee is unable to perform [his] job duties” in order to be valid.

The Court was also influenced by the fact that the plaintiff failed to follow his physician’s treatment advice:

[The plaintiff] also has not provided any other medical evidence to counter the emergency treating physician’s final diagnosis of bruises and mild back pain. Importantly, none of the medical information [the plaintiff] has provided suggests that his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription [the plaintiff] refused to take. Because [the plaintiff] cannot demonstrate that he suffered from a serious health condition, he is not eligible for FMLA leave.

In short, even though two different physicians indicated that the plaintiff should not return to work for three weeks and even though there was no contrary medical evidence offered by the employer, the Court disregarded their expert medical opinions of the treating physicians and focused, instead, on the particular diagnosis and the fact that the plaintiff failed to follow medical advice (which presumably lengthened his period of disability).

In contrast, the dissent concluded that UPS would be required to first notify the plaintiff why his medical certification was deficient before he could be terminated for failing to satisfy his burden of proof. The majority dismissed this concern on the grounds that the plaintiff failed to submit any medical documentation within fifteen days. Thus, only when medical certification has been timely submitted would an employer be required to permit an employee to cure a deficiency.

The dissent also noted that while bruises probably are not serious health conditions, an acute lumbar strain could be:

Symptoms vary depending on the severity of the strain, but “[t]ypically, the patient with a low back strain moves with care, particularly when sitting down or standing up.” Id. Treatment “includes patient reassurance, brief bed rest during the acute phase of low back pain, a firm mattress with a bed board, and the judicious use of analgesics or nonsteroidal anti-inflammatory drugs (NSAIDs).” Id. ¶ 15A.46. Additionally, “the patient should be instructed to avoid activities that intensify back pain.” Id. The recovery period depends upon the severity of the strain. Although “[t]he acute back strain patient generally experiences gradual improvement over a period lasting approximately two weeks,” patients with severe strains may not recover for up to three weeks. Id. ¶ 15A.47. Finally, there is a “significant likelihood of recurrence,” and “[w]hile the first episode of back pain is usually the briefest and least severe, the vast majority of such patients are at risk of developing another episode of back pain that will be more severe and longer lasting.” Id. Clearly, an acute lumbar strain can be a “serious health condition that makes the employee unable to perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1)(D).

The majority dismissed this concern as merely hypothetical in light of the lack of evidence and specificity in the medical statements.

Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0712n-06.pdf.

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.