The FMLA is a confusing topic for employers and human resource professionals. Many times, the mere mention of the letters “F” “M” “L” “A” out of an employee’s mouth are enough for the employer to grant the employee leave, no more questions asked.
This is why two recent federal district court opinions are helpful to employers navigating the FMLA terrain as they highlight that an employer does not have to take the employee at his or her word that FMLA time off is needed. Rather, the employer has the right to request and receive proper medical certification of a serious medical condition from a health care provider or else the employee’s leave is simply not covered under the FMLA and the employer may proceed with its discipline procedures.
The first decision, Huberty v. Time Warner Entertainment, concerns an employee who informed his supervisor that he needed to take time off for a stress in his life. He was referred to human resources who began dealing with his request for time off. In the meantime, he began taking time off and apparently started to search for a doctor who would certify his need for time off.. Needless to say, the employee never found a doctor to certify his condition and the employee was terminated for violating the company’s no call no show policy. The employee sued for FMLA retaliation and interference.
Judge Adams granted the employer’s request for summary judgment and held that the employee’s own subjective assessment of his health condition was insufficient to satisfy his burden to prove that he was suffering from a “serious health condition” under the FMLA and made clear that a “health care provider” must make the determination that the employee cannot work:
It does not mean that, in the employee’s own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a “health care provider” has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness. If it were otherwise, a note from a spouse, parent, or even one’s own claim that one cannot work because of illness would suffice. Given the legislative history surrounding its enactment, the FMLA cannot be understood to establish such liberal standards for its application.
The next day, another federal court judge issued another favorable decision in Poling v. Core Molding Technologies. In Poling, the plaintiff requested intermittent leave due to a condition known as Reflex Sympathetic Dystrophy Syndrome (“RSD”). The employer accepted and certified plaintiff’s FMLA leave for his requested monthly treatments and physical therapy. Between May and September 2008, however, the employee never took FMLA leave. On September 20, 2008, the employee called in, left a voice mail message that merely stated: “Terry Poling, Night Shift, FMLA.” The employer sent the employer a letter informing him of his FMLA eligibility and requested medical certification for his absence. The letter warned the employee that his failure to provide the certification could result in a violation of the company’s attendance policy because the employee had exhausted all other leave entitlements. The employee was asked numerous times for the medical certification but never provided sufficient medical certification. The medical documentation he did submit merely mentioned plaintiff’s RDS condition, but was silent on the reason for the employee’s absence from work. The employer gave the employee another chance to provide proper medical certification, but he failed to submit any and was terminated.
He sued for FMLA interference and discrimination and the court granted summary judgment for the employer and reaffirmed the black letter language of the FMLA that allows an employer to require that a request for leave be supported by a certification issued by the employee’s health care provider. An employee’s failure to do so means that the “leave is not FMLA leave”.
These cases highlights that employers have ways to make the FMLA pill easier to swallow and defenses at their disposal. They just need to know what they are, be thorough, be thoughtful, and be consistent.