by Jason R. Mau, JD, Greener Burke Shoemaker Oberrecht, P.A.
Recently, the Idaho Supreme Court released an opinion in which it upheld a district court’s dismissal of an employee’s claim that his employer interfered with his request for Family and Medical Leave Act (FMLA) benefits.
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While the court’s opinion addressed the employee’s alternative retaliation theory based on Idaho’s whistleblower provisions and provided him some relief, the court unquestionably upheld the employer’s actions related to its administration of FMLA leave. The analysis in the case should encourage employers that the diligent administration of FMLA leave programs will help protect them should a claim be filed.
Facts
In January 2013, Ada County allegedly decided to reorganize its Department of Administration, cutting at least one position. (Because of appellate review procedures, the court was required to review the record in the light most favorable to the employee and draw reasonable inferences in his favor. The opinion does not disclose whether other positions were cut as a result of the alleged reorganization.) “Timothy” had served as the director of the department for at least 4 years, but he was notified that his position would be eliminated as a result of the reorganization.
Timothy had a request for FMLA leave pending under the county’s leave application process at the time he was notified of his termination. He submitted the request on January 2, 2013. HR did not receive a copy of the healthcare provider certification it required for FMLA leave until January 15—the same day Timothy received his termination letter.
Thus, Timothy’s employers, the county commissioners, did not become aware of his FMLA leave request until January 18, 3 days after his termination. Subsequently, the county commissioners agreed to extend his salary and benefits to the end of the following month to coincide with the amount of leave he would have been eligible for had his position not been eliminated.
Nevertheless, Timothy filed a lawsuit in state court alleging that his termination directly interfered with his FMLA rights. He also asserted a claim under the Idaho Protection of Public Employees Act—Idaho’s whistleblower law.
In addition to maintaining that his termination was retaliation for requesting FMLA leave, Timothy alternatively claimed that his termination was retaliation for his organization of and participation in investigations into workplace harassment and hostile work environment claims as director of the department.
FMLA notice and certification requirements
Before discussing the court’s opinion further, it may be helpful to review some basic FMLA requirements. Most courts and attorneys turn first to federal regulations compiled by the U.S. Department of Labor (DOL) when dealing with questions related to the FMLA.
The regulations include direction on rights and obligations for employers and employees under the FMLA, set forth record-keeping requirements, and outline enforcement. The DOL has also prepared blank forms that many employers use to help their leave programs meet the FMLA’s requirements.
Under the federal regulations, employees have a notice requirement. If leave for the employee’s or the employee’s family member’s serious medical condition is foreseeable, the employee is required to provide the employer with advance notice—generally, 30 days’ notice.
30 days’ notice is not possible (e.g., because of a change in circumstances, an emergency, or a lack of knowledge of when leave will need to commence), the employee must give notice “as soon as practicable.” The notice must include at least “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave.” The notice must also include information on when leave will take place and the expected duration of leave.
Those are the minimum standards under the FMLA. The regulations allow an employer to set further notice and procedural policies for leave requests that employees are obligated to comply with as long as there are no unusual circumstances.
Examples of additional requirements that may be adopted include written notice obligations or directions to notify a specific individual of the need for leave. Thus, the regulations provide employers sufficient tools to gather the information required to comply with federal law.
Fortunately for employers that diligently manage their FMLA leave program, the regulations obligate employees to provide additional information, if requested, under certain circumstances. An example is an employee’s obligation to provide, upon the employer’s request, certification of a serious health condition from his or a family member’s healthcare provider.
Many employers wisely use the certification provision to help curb FMLA leave abuse and relieve themselves of the sometimes difficult task of determining whether the requested leave involves an appropriate serious health condition.
By using the FMLA certification process, an employer is able to rely on the regulation’s guidelines for content, timing, and the consequences of failing to provide adequate certification. Regarding content, an employer can use the optional forms developed by the DOL—Form WH-380E and Form WH-380F—to request permissible information, including contact information for the healthcare provider, the provider’s specialization, and a description of the pertinent and applicable medical facts.
The regulations also permit an employer to request (at its expense) second and third opinions if it has reason to doubt the certification’s validity. Alternatively, an employer can seek authentication or clarification of a medical certification (subject to Health Insurance Portability and Accountability Act (HIPAA) regulations).
As for timing, an employer is allowed to request certification at the time the notice of foreseeable leave is provided. The employer is also able to request certification within five business days after unforeseen leave commences (typically an emergency).
In addition, an employer may request certification after the commencement of leave if a question about the appropriateness of leave or its duration arises. Regardless of the timing of the initial request for leave, an employee is given 15 days to provide the requested certification unless an employer chooses to allow, or the circumstances require, more time.
Finally, an employer may advise an employee that his leave request may be denied if certification is not provided or he fails to cure any defects in the certification when requested.
Application of FMLA to employee’s claims
Now, with the regulations in mind, we turn back to the court’s opinion. At the lower court, Timothy was unsuccessful in showing that the county had interfered with his FMLA rights. The district court reasoned that his termination and FMLA leave request were two unrelated events, finding that the county commissioners were not aware of his leave request when they presented him with the termination letter.
Regarding Timothy’s claim that he was retaliated against for participating in workplace investigations, the district court found that Idaho’s whistleblower law did not apply based on its interpretation of what constitutes participation in an investigation under the statute. Timothy, of course, disagreed with the court’s conclusions and asked the Idaho Supreme Court to review the case.
On appeal, in what appeared to be an attempt to broaden precedent stating that an employer’s intent is irrelevant to a determination of liability in FMLA interference cases, Timothy attempted to argue that an employer’s lack of knowledge of a request for leave is irrelevant to an interference claim.
Under the FMLA, an employer can be liable for interference when it attempts to avoid responsibilities under the Act (for example, by transferring employees, changing the essential functions of a job, or reducing available work hours so that the FMLA does not apply to its workplace) or discriminates or retaliates against an employee for exercising or attempting to exercise his FMLA rights.
The employer is liable for interference regardless of its intent in taking those actions, but as the court pointed out, whether an employer intended to interfere with an employee’s FMLA rights is distinct from whether it had actual knowledge (i.e., notice) of the employee’s attempt to exercise his FMLA rights. Although an interference claim does not require a showing that the employer intended to interfere, it does require evidence that there was actual notice. Thus, an interference claim cannot stand if the employer did not have notice of the employee’s FMLA leave request.
Accordingly, the facts in the record could support only a finding that the county commissioners were not aware of Timothy’s FMLA leave request at the time the termination letter was presented to him. Therefore, there could be no finding of notice for purposes of an interference claim. What is more, the commissioners ultimately provided Timothy with an additional month of salary and health benefits for the amount of leave requested when they found out about his request for FMLA leave after his termination.
However, all was not lost for Timothy. The supreme court reversed the lower court’s conclusions related to his whistleblower claim. Basically, for his whistleblower claim, it came down to an interpretation of the statute and whether the protections extend to an employee who participates in any investigation regardless of the purposes of the investigation.
The supreme court concluded that Timothy’s participation in the investigations at issue met the requirements under the statute and sent that part of the case back to the lower court. Although the county will be required to show that its decision for the discharge was unrelated to the investigations at issue, it will not have to defend the administration of its FMLA leave program.
Takeaway
While it is unknown whether the county will be able to defend its decision in light of Timothy’s participation in the investigations and whether there was a causal connection between the investigations and his termination, there is enough information in the court’s decision to show that the court believed the county appropriately administered its FMLA leave policies. The fact that the county commissioners were not aware of Timothy’s request for leave until 16 days after he initially provided notice to the county was not an impediment to the court’s decision.
Implicit in the decision is the fact that an employer asking for medical certification to confirm an FMLA leave request will not be held against the employer for purposes of notice, at least in the case of a large employer with an HR department that is separate from the final decision makers. Also, notice will not be imputed to an employer until the requested certification is obtained.
In this case, the initial FMLA leave request was allegedly made on January 2, 2013, but certification from the employee’s healthcare provider was not received until January 15. Under the regulations, it is fitting to expect an employee to need up to 15 days to obtain certification when requested. Thus, the court did not question the gap in time or impute the initial request as notice of a request for FMLA leave to the county commissioners.
Next, the actions of the county commissioners helped show that Timothy’s termination was not based on his request for FMLA leave. The county was able to show that once it was aware that Timothy had complied with its usual and customary procedural requirements for requesting leave, it took measures to acknowledge that he had made a valid request.
While a decision by the county to not provide additional postemployment benefits or salary would likely have been upheld since it was found that it had no notice of Timothy’s leave request at the time of termination, the decision to provide the additional benefits and salary likely did not hurt the county in the court’s review of the record and subsequent analysis.
Although some might look only at the timing of the events and question the motives of the commissioners, the entire record did not give the supreme court any reason to question their motives. Obviously, the evidence regarding the county’s administration of its leave procedures provided the court with sufficient facts to conclude that there was no FMLA interference.
Accordingly, employers that use all the notice and certification provisions under the FMLA regulations should feel relieved that their due diligence will not go unnoticed if an employee chooses to file an unsupported interference claim.
That also should be a relief to employers that are on the fence about adopting such measures if they regularly find themselves questioning whether abuse of FMLA leave is happening under their watch or are stressed each time an FMLA leave determination is required. This case acknowledges that an employer can expect employees to meet their obligations under the FMLA.
Thus, it is recommended that employers not using the additional procedures contact an employment law expert to discuss the steps they can take to adopt the measures. After all, most employers would likely agree that approving medical or family leave for an employee is much easier when there is a proper doctor’s note in his file.
Jason R. Mau, an editor of Idaho Employment Law Letter, is also an attorney with Greener Burke Shoemaker Oberrecht, P.A. He can be reached at 208-319-2600 or jmau@greenerlaw.com.