by Kara Shea
The following case provides some hope for employers that find themselves continually dealing with suspicious leave requests under the Family and Medical Leave Act (FMLA). It shows that you don’t have to accept a medical certification form at face value.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA
Absent and tardy
A health care company maintained a no-fault attendance policy that assigned points to employees based on their number of unexcused absences. Those accruing more than 112 points in a 12-month period were subject to termination. The employer, however, didn’t count FMLA-covered absences toward that points total.
The employee, a financial counselor, was fired after she accrued 124 points between April 16, 2003, and April 16, 2004. The final absences, which resulted in her discharge, occurred in late March 2004. She called in each day during that period to explain her absences:
- On March 22, she reported that her 18-year-old daughter was having a baby.
- On March 23, she was late for work.
- On March 24, she missed work, saying she was having “back pain.”
- On March 25, she called in to report that her “back was out.”
On Saturday, March 27, she e-mailed her supervisor to explain that she would need to be off for an “emergency” from March 29 to April 1. She stated that her daughter was suffering from postpartum depression and needed help to care for her newborn. The employee herself was suffering from back problems again. In fact, she saw a doctor about those problems on March 30.
Forms and more forms
Realizing that she had exceeded her attendance points total, she requested FMLA leave for her March 2004 absences and received the paperwork from the company. In early April, she sent an FMLA certification form to her regular doctor’s office. It wasn’t the same doctor, however, who had seen her about her back problems on March 30.
The doctor filled out the form and sent it to the company. Because she hadn’t actually examined the employee’s back, however, she omitted some required information, such as a description of the medical facts and the condition’s likely duration. The company told the employee that the medical certification form was incomplete. She then called the doctor’s assistant, insisted that she complete the remainder of the form, and instructed her on how to fill in the blanks. The form was then resubmitted to the employer.
On April 9, the employer held a “predischarge” meeting with the employee and her union representative to discuss whether her recent absences qualified for FMLA leave. Because the employer questioned the medical certification form’s authenticity, it asked the employee to sign a release authorizing it to contact the doctor directly, and she did. The employer then gave her an additional week to present more documentation about the reasons for her absences.
During that period, she brought her regular doctor up to speed about her March 30 examination by another physician. Her regular doctor filled in the FMLA form herself this time, giving more details about the employee’s back problems, and resubmitted it to the employer. When the employer contacted the doctor (as it had been authorized to do), she admitted that she hadn’t examined the employee’s back herself and that the form was based on secondhand information.
During that period, the employee also submitted another medical certification form — from another health care provider — pertaining to her daughter’s postpartum depression. The doctor indicated that the daughter’s condition would last for one week and that the employee needed to assist with caring for the baby during that time. Finally, the employee presented yet another FMLA form from the baby’s doctor saying the baby was also sick and that the employee was needed to care for her.
Noting that the employee had provided “contradictory” information, the company decided that her March absences didn’t qualify for FMLA leave and terminated her on April 16 for exceeding the allowable points under the attendance policy. She then sued for wrongful discharge, including a claim based on interference with her FMLA rights. The trial court dismissed the case, and she appealed to the Sixth U.S. Circuit Court of Appeals.
Sixth Circuit’s ruling
On appeal, the employee raised two arguments with respect to her FMLA claims:
- She said she was entitled to FMLA leave on her own behalf because of her “back problems.”
- She claimed that she also was entitled to leave to care for her daughter and assist with the care of her newborn grandchild.
She argued that under federal regulations, a medical certification form is presumed to be valid and that the company didn’t have the right to question and eventually reject the forms she submitted for her back problems. She contended that if the company didn’t agree with the doctor’s assessment of her back, its only option was to seek a second opinion.
The Sixth Circuit rejected all of her arguments. It held that the “suspicious and contradictory nature” of the forms she presented justified the employer’s actions. Also, when the employer learned that the doctor who filled out the form wasn’t the physician who actually examined her back, it could refuse to grant FMLA leave on that basis.
The court acknowledged that employers have a responsibility under the regulations to give employees an opportunity to correct deficiencies in their medical certification forms. The employer in this case fulfilled that obligation by giving the employee multiple chances to submit the form for her back and other forms supporting the leave request. The court also held that the employer wasn’t required to seek a second opinion and that its failure to do so didn’t preclude it from contesting the validity of the employee’s serious health condition.
In the end, the Sixth Circuit held that employees have the burden to show that they’re suffering from a serious health condition. While that isn’t a heavy burden, the employee in this case fell short.
Daughter’s postpartum depression. The Sixth Circuit also addressed the employee’s argument that she should have been given time off to care for her daughter, who was suffering from postpartum depression, and her new grandchild, who was also ill. Here’s what the court said:
- The FMLA doesn’t provide time off to care for grandchildren, period.
- It also doesn’t provide time off to care for adult children unless they’re unable to care for themselves because of a mental or physical disability.
The Sixth Circuit also sided with the courts that have held that an employee requesting such leave must show that the adult child suffers from a type of impairment that would qualify as a disability under the Americans with Disabilities Act (ADA). A temporary bout of postpartum depression isn’t an ADA-qualifying disability, the court held. Therefore, the employee was out of luck.
The employee couldn’t show that she was entitled to FMLA leave. Therefore, the employer was justified in firing her and didn’t interfere with her FMLA rights by doing so. The Sixth Circuit upheld the trial court’s dismissal of her FMLA claim. Novak v. MetroHealth Medical Center, 2007 WL 2807004.
Practical guidance
When employers are handling FMLA leave requests that seem suspicious, they can challenge employees without interfering with their FMLA rights — if the employer goes about it the right way. The employer in this case didn’t simply hand back the form and say “You’re fired.” Rather, it scheduled meetings to discuss the issue, gave the employee several chances to get it right, and requested permission before contacting her doctor. That last point is key: Federal regulations prohibit employers from making direct contact with an employee’s doctor without clear authorization (with the exception of some work-related injuries for which workers’ compensation claims have been filed).
The employer in this case took exactly the right steps to protect itself from a pretty obviously bogus FMLA claim submitted on the heels of an attendance policy violation. (Why, you may ask, did the employee not simply submit a form from the doctor who actually examined her back? Good question.) It’s true that if the employee ends up giving you a form that’s at least facially complete and authentic, you must accept it. If you disagree with it, seek a second opinion. If your employees know that you’ll fairly, firmly, and consistently challenge incomplete medical certification forms and suspicious leave requests, that will likely cut down on the number of questionable claims up-front.
This case also defines the standard for what constitutes a “disabled” adult child under the FMLA for employers. Based on the Sixth Circuit’s ruling, if you have an employee requesting leave to care for an adult child, you may require her to submit proof that the child suffers from an ADA-qualifying mental or physical impairment.