Sixth Circuit Revives ADA Claims

Yesterday, the Sixth Circuit reversed an employer’s summary judgment in an ADA failure-to-accommodate/constructive discharge/retaliation dispute where the employer allegedly had a policy of never accommodating non-work related disabilities (i.e., chronic conditions or off-work injuries) and apparently never requested the employee to produce updated medical documentation of her need for her requested accommodation before denying the requested accommodations.  Morrissey v. Laurel Health Care Co., No. 18-1704 (6^th Cir. 2019).  The Court also rejected a “de minimis” exception to failure-to-accommodate claims where the employer only twice rejected the employee’s allegedly requested accommodation before she quit.  The Court also reversed dismissal of her constructive discharge and retaliation claims on the grounds that she produced enough evidence of a factual dispute to show a jury.  Importantly, the most recent medical statements provided by the employee to the employer indicated that she had no medical restrictions, but the employer also failed to require her to provide updated medical restrictions when she allegedly again raised the issue.  Rather, the employer seemed to deny that she ever made the requested accommodations.


The Background.

According to the Court’s opinion, a long-time employee produced three medical statements in 2012 indicating that she could not work more than 12 consecutive hours per day and the last such statement indicated that the restriction was only in place until her next appointment.  No other medical documentation was provided by the employee or apparently requested by the employer. Following her 2015 carpal tunnel surgery, she was released to work without any medical restrictions, but the employee alleges that she told the employer that her former 12-hour work restriction remained.   (The court found the existence of the 12-hour medical restriction to be a factual dispute because the plaintiff argued that it continued to the present and the employer argued that it expired no later than March 2012 or August 2015).  Several witnesses and documents indicate that in February 2012, the employer announced a policy of no longer accommodating non-work related medical restrictions, but the employer denied this.


In December 2015, the employer implemented 12-hour shifts in most of its units.  The plaintiff alleged that she requested to transfer into positions where she would work no more than 8 hours/shift, but claims that she was denied.  The employer denies that she made any such request and points out that she had seniority to transfer into 8-hour positions.   Nonetheless, the Court agreed that there was no indication prior to January 30, 2016 that that she had ever been required to work more than 12 hours because at worse she clocked out within 15 minutes of the end of a 12 hour shift on only 8 different occasions.


She contacted the EEOC and corporate on February 1 after she was – for the first time—required to work 13.5 hours on January 30 over her alleged protest about her alleged 12-hour medical restriction.   The manager allegedly told her that she knew nothing about any medical restrictions in her file and had “no control” over the scheduling.  However, when the employer’s corporate officer returned her call, she did not call him back.  There is no discussion about any failure of the interactive process by her refusal to return this call.  Four days later, the plaintiff was required to work a 16 hour shift (even though it was alleged not her turn on the mandatory overtime rotation list) and, when her protest about her alleged medical restriction was allegedly ignored, she quit.


Court’s Analysis

Failure to provide a requested accommodation constitutes direct evidence of discrimination under the ADA, but the trial court analyzed the claim under an indirect burden of proof.   The trial court also analyzed the existence of a disability under pre-ADAA law by requiring the plaintiff to provide a specific diagnosis and disputing that an inability to work overtime was a disability.   The Court found that the alleged medical restrictions on the plaintiff’s ability to walk, stand, bend, etc. was sufficient to satisfy her burden of proving that she was disabled without her also having to prove that she was limited in her ability to work.  

Moreover, she did not have to tell [the employer] about her specific diagnoses.  Morrissey told [the employer] that she could not work more than twelve-hours per shift because she suffered from a disability as defined by the ADA.  That was enough.

Although hindsight is 20/20, the plaintiff in this case did have plenty of medical records supporting her claimed disability if she had ever been asked for medical documentation and, as previously indicated, the Court found it to be a factual issue for the jury whether the employer was sufficiently put on notice of this by her requests for an accommodation and the two medical statements indicating that she had no medical restrictions.   In any event, the medical and other evidence satisfied the plaintiff’s burden of proving at the summary judgment stage that she had a disability so that the jury could resolve any disputed issues of fact.


The Court also found sufficient evidence to show that she had a record of a disability based on her allegations of frequently raising the 12-hour work restriction and the employer’s previous accommodation of that restriction before 2012.  It also found sufficient evidence that she was regarded as disabled because she was allegedly constructively discharged when the employer refused to accommodate her alleged medical restriction. This makes no sense to me under the facts as explained in the Court’s decision, but there it is.


The Court also found sufficient evidence to get to a jury about whether the employer failed to provide a reasonable accommodation.  As mentioned, there is the dispute about two medical statements, so the Court did not issue judgment in favor of the plaintiff.   Importantly, the plaintiff produced evidence about the employer’s (disputed) policy and practice of refusing to accommodate non-work related injuries or chronic medical conditions, the (disputed) refusal to transfer her into an 8-hour position, and the employer requiring her on two occasions within one week to work beyond her alleged medical restrictions.

The record shows that Morrissey asked [the employer] for an accommodation due to her disability, and [it] did not accommodate her.  She was not required to establish anything more for her claim to ripen. . . . This satisfies Morrisey’s burden under the direct evidence test applicable to a claim of failure to accommodate.

The Court rejected the trial court’s ruling that the employer’s actions were de minimis and did not constitute an actionable employment action:

First, however, the de minimis standard arises in the context of an adverse employment action, not a failure to accommodate.  Compare Arndt, 716 F. App’x at 527 with Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000).  Second, and more importantly, under the district court’s logic, an employer would be free to contravene a disabled employee’s restrictions a certain number of times or with an unspecified amount of regularity before the employer is liable.  Such a rule would be not only cruel, but it would also contravene our previous precedent and the ADA.

There was no discussion in the Court’s decision about the failure of the interactive process, which is interesting.  Employers who have prevailed on such claims in other cases were able to point to the employee’s failure to cooperate with permissible medical inquiries or to consider alternative accommodations, etc.


The Court also remanded the constructive discharge claim for the same reasons: “For the reasons described above, a dispute of material fact remains over whether Morrisey is disabled.  This claim is properly analyzed under the direct evidence test because Morrisey’s constructive discharge was premised on [the employer’s] failure to accommodate her.” A constructive discharge claim “requires a finding that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’”

In Talley, we stated that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.’”   . . .  This case presents precisely that scenario.  Morrissey informed Coldwater numerous times of her twelve-hour restriction from 2012-2016, but Coldwater mandated Morrissey to work 13.5 hours on January 31, 2016.  When Morrissey told her manager that she had a disability that prevented her from working beyond twelve-hours, the manager told Morrissey that she had “no control” over the situation.  Five days later, Morrissey was informed that she was being mandated to work sixteen hours, even after Morrissey, again, told her supervisor that she was under a medical restriction.  When she complained to Hayes, Hayes stated there was nothing she could do.  In the face of Coldwater’s repeated failures to honor Morrissey’s accommodation requests, a reasonable plaintiff in her position would have felt compelled to resign.  Because Morrissey has shown that a reasonable juror could have found that she was constructively discharged, she has satisfied the adverse employment element.  Her claim for disability discrimination proceeds to trial.

The Court rejected the employer’s argument that its purported policy of accommodating only work-related injuries was legal: The employer “cannot refuse to provide Morrisey with a reasonable accommodation and then conclude that she is not qualified for her position because she cannot meet her job’s requirements without an accommodation.”


Finally, the Court reversed the dismissal of the retaliation claim on the basis that she satisfied her burden of showing constructive discharge, which can constitute an adverse employment action.  Her allegedly repeated requests for a 12-hour shift restriction constituted protected conduct under the ADA.   While the Court did not hold that every failure to accommodate will also constitute retaliation, the plaintiff satisfied her burden of showing retaliatory motive in this case because the assignment that she work 16 hours on her final shift was made out of order when another employee was allegedly due to be assigned mandatory overtime before her on the alleged overtime rotation list.  (The employer denied the existence of any list).


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.

DOL Updates FMLA Medical Certification Forms to Include GINA Safe Harbor Warning to Physicians

Last month, the DOL published new FMLA Medical Certification forms to include safe harbor language from the Genetic Information Non-Discrimination Act (GINA) advising healthcare providers in cryptic language to not include genetic information, genetic tests or family medical histories when responding to the FMLA requests for information about the employee.  The new forms are good until May 31, 2018. This is probably a good time to remind employers who request medical information about employees (concerning FMLA and ADA requests) to include similar language in their requests for medical information in order to avoid violating GINA.

GINA prohibits employers from requesting or using genetic information from or about employees.  Genetic information has been defined to include family medical histories.  If an employer lawfully requests medical information about an employee (pursuant to, for instance, an FMLA leave request, FMLA return to work notice, and/or ADA reasonable accommodation) and then receives genetic information in response to the lawful request, the employer can still be liable for violating GINA unless it specifically directed the healthcare provider to NOT provide genetic information.  In particular, the GINA regulations create a safe harbor for employers if they provide the following disclaimer (or something similar) with a request for medical information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

The new FMLA medical certification form for individual employees contains the following language directed to the healthcare provider as though they are intimately familiar with the terms of the GINA regulatory definitions:

 Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).

Employers are also not liable for inadvertent receipt of genetic information or for receiving information lawfully acquired under the FMLA when medical/family leave is sought to care for an ill family member, whose medical history is directly relevant to the FMLA leave request.  The GINA regulations specifically provide that it does not violate the Act to request information about family medical history:

Where the covered entity requests family medical history to comply with the certification provisions of the Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.) or State or local family and medical leave laws, or pursuant to a policy (even in the absence of requirements of Federal, State, or local leave laws) that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave.

In light of this, the FMLA medical certification form concerning a family member’s serious health condition contains a slightly different warning to physicians about GINA:

 Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), or genetic services, as defined in 29 C.F.R. § 1635.3(e).

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 be changed or 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 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: Employer Can Request FMLA Medical Certification 11 Weeks After Leave Begins and After Employee Returns to Work For Appropriate Reasons Other Than Fraud

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 (6^th 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.

Sixth Circuit Limits Employer’s Challenge to Reliability of FMLA Medical Certification

Last week, the Sixth Circuit Court of Appeals affirmed a jury verdict and liquidated damages in favor of an employee who alleged that her employer improperly denied her FMLA leave and then fired her in retaliation for taking FMLA leave.  Hyldahl v. Michigan Bell, No. 09-2087 (6^th Cir. 10/31/12).  The Court rejected the employer’s argument that the employee’s supplemental medical certification was invalid or at least unreliable because it was unsupported by a contemporaneous medical or psychological examination and was based instead on the employee’s subjective description of how she was feeling.    

According to the Court's opinion, the employee had been under medical care by the particular healthcare providers for chronic depression and PTSD for seven years at the time they certified that she was unable to work on the day in question.  The court found these medical providers were familiar enough with her serious health condition and course of treatment to certify her inability to work without a contemporaneous medical examination.   

The Court also found that liquidated damages were appropriate even though the employer acted in good faith because it did not have a reasonable basis to believe the opinion of its retained physician -- who had never examined the employee  -- over the medical certifications of the employee’s treating physician.  “Liquidated damages are presumptively awarded against an employer who violates the FMLA, and it is the employer’s burden to demonstrate that its decision to deny leave was both made in good faith and based on reasonable grounds.”  The trial court also had discretion to award such damages.
 
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.

DOL Posts New FMLA Forms on its Website.

The newly revised FMLA regulations became effective on Friday, January 16, 2009 and the Department of Labor has posted the new FMLA forms on its website at http://www.dol.gov/esa/whd/fmla/finalrule.htm. These new forms include:
• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
• WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
• WH-382 Designation Notice (PDF)
• WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)
• WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (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.