Woods is a shareholder in the Greenville, South Carolina office of law firm Ogletree Deakins, Nash, Smoak & Stewart, PC. His remarks came at BLR®’s annual National Employment Law Update.
Employer’s Failure Allows FMLA Claim To Go Forward
The Story: A newspaper receptionist, who was allegedly fired for violation of her employer’s attendance policy, had a triable Family and Medical Leave Act (FMLA) claim because the employer did not effectively trigger the plaintiff’s obligation to provide medical certification of her condition, a circuit court decided.
Reversing summary judgment for Gannett Satellite Information Network, owner of the Dickson Herald in Tennessee, the circuit court determined that Gannett could not rely on employee Deborah Branham’s failure to provide medical certification as a justification for denying her FMLA leave and firing her.
Instead, the court found that Branham satisfied her statutory obligation to notify the employer about her need for medical leave, and that Gannett “never properly triggered her additional duty to provide a medical certification supporting her claim.”
In the case, a physician, Dr. Pamela Singer, examined Branham on November 13, and the doctor wrote a “negative certification” indicating Branham’s condition was “normal,” and that she should be able to return work November 14. Nevertheless, Branham remained absent for most of the subsequent two weeks, due to migraine headaches, nausea, depression, and insomnia.
On November 24, Gannett fired Branham for violation of the company’s attendance policy, as she was absent after the date the doctor released her to work. On that same day, however, Gannett received a faxed certification form from a nurse practitioner in Dr. Singer’s practice group, stating that Branham’s illness began on May 6, and was expected to last until January 1, 2007.
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The court determined that “Branham has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and Gannett was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by regulations.”
Even if the company representative had discussed all the appropriate information, an oral request would have been “insufficient to activate Branham’s certification duty,” the court said.
What can we learn from yesterday’s and today’s cases?
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