Here we present a leave-related scenario intended to help HR professionals better understand an employer’s responsibilities under the Family and Medical Leave Act (FMLA). We present the “facts” of the scenario and explain where the employer went wrong and what they may have done differently. This scenario and the resulting lawsuit, related to FMLA medical certification, is inspired by actual events.
Rachel, a resident physician at St. Elsewhere hospital, has a chronic heart condition that causes a rapid heartbeat, light-headedness, and dizziness. It also causes her to lose consciousness, which has happened on several occasions.
Rachel requests a leave of absence to undergo inpatient surgery to address the heart condition. When she discusses her need for leave with Helga, the HR representative, Helga decides to grant Rachel 3 weeks of leave without requesting any medical certification from Rachel. Rachel tells Helga that she will need more time to recover, and Helga generously grants Rachel an additional 2 days of leave.
Rachel’s medical certification form, submitted after her meeting with Helga but before her surgery, does not contain an anticipated return to work date or an explanation of the duties Rachel could not perform. No FMLA designation form is ever completed.
After surgery Rachel calls Helga and her supervisor to extend her medical leave, but her return date remains ambiguous. Helga does not ask Rachel to provide recertification of her need for leave. Several days later, Helga sends her a letter asking her to provide a “receipt of an extension” of her leave from her physician and to provide it by the end of that same week. One week later, when she does not hear from Rachel, Helga sends an e-mail to Rachel asking her physician to “fax a statement extending your medical leave.”
Rachel leaves several voicemails for her physician, trying to obtain documentation supporting her extended leave. According to Rachel, her physician will not speak with her and does not respond to her voicemails. After nearly 3 weeks, Rachel contacts her supervisor to report that she is having difficulty reaching her physician to obtain the appropriate medical documentation.
A few days later Rachel is terminated. She sues under FMLA for interference and retaliation.
In Patel v. St. Vincent Health Center, Civil Action No. 12–298 (U.S. Dist. W.D. PA 2015) (the case that inspired this hypothetical), the U.S. District Court for the Western District of Pennsylvania refused to dismiss the employee’s case and sent the case to a jury trial.
Under FMLA, the employee must provide the requested medical certification or recertification 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 unless the employer allows more than 15 calendar days to return the requested certification.
1. What went wrong with the medical certification process? What should Helga have done?
Helga arbitrarily assigned a return-to-work date without asking for medical certification. The period of leave should be based on the treating physician’s recommendation provided in the completed medical certification.
When the medical certification came back incomplete (i.e., without an estimated return date), Helga did not seek to cure the certification and obtain the information necessary to make a determination about whether the absence was covered by the FMLA and if so, how much leave was necessary.
Helga did not request recertification of the need for leave when Rachel requested an extension of leave. Helga’s request for a doctor’s “receipt of extension” and a “statement extending leave” was too vague (and Helga gave Rachel less than 5 days to provide it).
Helga should have requested recertification and informed Rachel of the consequences of not providing the recertification within the FMLA’s statutory 15-day period. Helga’s failure to request recertification opened the employer up to liability.
When Helga had enough information to determine whether FMLA applied, she was required to provide Rachel with a Designation Notice. Helga never designated the leave as FMLA qualifying.
Rachel told her supervisor that she had repeatedly attempted to contact her doctor to recertify the extension of leave. This information was enough to substantiate a claim of Rachel’s “diligent, good-faith efforts” to obtain recertification and should have triggered a discussion about an extension of the 15-day period.
2. What if Rachel never returned the medical certification (or recertification)?
If an employee fails to return requested medical certification (or recertification) and there is no evidence that it was not practicable for her to do so under the particular circumstances (despite her diligent, good-faith efforts), and the employer has not provided an extension of time, the leave is not protected FMLA leave. In such a case, Helga could either designate any remaining paid leave Rachel has as FMLA leave or if Rachel has no remaining leave, deny FMLA leave and apply any policies the employer has for unexcused absences.
FMLA regulation: 29 CFR Sec. 825.313(b)
3. What if Helga properly requests a fitness-for-duty certification and Rachel does not provide one?
If the employer intends to require a fitness-for-duty certification before return to work at the end of an FMLA leave, the employer must notify the employee of this fact no later than the FMLA designation notice. DOL’s Designation Notice (Form WH-382) contains a statement to this effect.
If Helga properly notified Rachel of the fitness-for-duty certification requirements, and no certification is returned within 15 days (and Rachel provides no information regarding her diligent, good-faith efforts to secure certification), Helga may delay Rachel’s job restoration until Rachel provides the certification. If Rachel never provides the certification, she may be denied reinstatement.
FMLA regulation: 29 CFR Sec. 825.312