An employee who took “unexcused” leave from work when a dog bite turned into a serious health condition was fired after failing to submit medical certification forms in a timely manner. The deadline complied with the Family and Medical Leave Act; however, a federal district court held that a jury should decide whether the employer actually interfered with the employee’s FMLA rights by failing to “properly” request the health care provider’s certification and advise the employee that she would lose her job if the completed form was not received within the requisite timeframe.
The court also questioned whether it was “practicable” for the employee to deliver the completed FMLA certification within 15 days under the circumstances. The case is Barker v. Genesys PHO, LLC, No. 13-CV-11828 (E.D. Mich., July 24, 2014).
Facts of the Case
Marianne Barker worked for two years as a quality management coordinator at Genesys PHO, LLC. On July 6, 2011, she informed Genesys that she suffered a dog bite to her hand so severe that it required stitches and a follow-up doctor’s visit because it appeared infected.
At the time that Barker spoke with her supervisor she knew she had used up all of her available time off and said she intended to seek leave under FMLA.
Later that same day Barker called her office to say that she had been admitted to the hospital for what was diagnosed as cellulitis, an infection that requires aggressive therapy. She was treated with IV antibiotics and pain control medications and remained hospitalized until July 9.
Three days after her release from the hospital, Barker experienced complications from the infection and her doctor told her that she should continue to stay home.
On July 13, Barker contacted her supervisor and said she was undergoing tests to find out the cause of what was now determined to be a “systemic infection.” When Barker’s supervisor impressed upon her the importance of providing medical substantiation, Barker said she sought guidance on how her physician should complete the certification form given that both the precise cause of her ailments and her return date were unknown.
According to Barker, neither her supervisor nor anyone else at Genesys provided any advice or answers to resolve her confusion.
Barker’s physician completed an undated certification form “around the 13th or 14th of July” and wrote “no work until 7/18/2011.” Barker, however, said she could not retrieve the form from his office to submit to Genesys because her complications had worsened and she was so sick she “couldn’t get out of [her] house.”
Barker also explained that her doctor’s office would not fax the completed form directly to Genesys because it did not want to assume responsibility for its successful delivery.
Barker was scheduled to work on July 19, but called Genesys to say that she was too ill to work and did not know when she would be healthy enough to return.
On July 21, Genesys terminated Barker’s employment. In the termination letter, Genesys informed Barker that her “continued absence from July 6, 2011 … had been categorized as repeated unreported absences.”
Genesys specifically cited Barker’s failure to submit medical certification as grounds for her termination: “As you should be aware, the purpose of providing the FMLA documentation from your physician is to ensure you qualify for FMLA leave … The 15-day period for supplying the requisite physician certification has expired as of today [July 21].”
On July 25, Barker submitted the completed certification and asked Genesys to reinstate her. She indicated to Genesys that she intended to have her physician update the form.
Genesys refused to reverse the termination and Barker subsequently filed a lawsuit alleging FMLA interference.
Court Weighs in
The U.S. District Court for the Eastern District of Michigan, Southern Division, denied Genesys’ motion for summary judgment “on the ground that Barker’s failure to submit a certification by July 21 allowed Genesys to treat her absences as unexcused and to fire her for those absences.”
The court said it found “a material factual dispute as to whether Genesys made a proper request for certification on July 6, and, even if Genesys did so, whether it was practicable for Barker to respond within 15 days.”
Employer Takeaways
FMLA places the onus squarely on the employer to make a proper request for a physician certification that:
- contains the required advice and warnings to the employee; and
- expressly communicates that the 15-day period for an employee to provide the certification begins when the employer makes the request.
Employers may not start the 15-day clock immediately upon an employee’s absence based upon general statements made by the employer representative about the need for medical certification or the employee’s knowledge of the employer’s general FMLA policy.
When an employee’s request for FMLA leave is unforeseeable (as it was in Barker), FMLA makes clear that “the employer must give the employee at least 15 calendar days to provide the requested certification, and more time if it is not practicable under the circumstances to do so within 15 days.”
“Many employers view the 15 days as a hard-and-fast rule without considering the ‘impracticable’ exception,” Jackson Lewis attorney Michael J. Soltis wrote in his analysis of Barker. “’Practicable’ may be in the eye of the beholder.”