Recent Decision Regarding FMLA
The United States District Court for the Southern District of Ohio recently issued a decision in a case that provides guidance to employers regarding several areas of the Family and Medical Leave Act (FMLA). In that case, the court examined three provisions of an employer’s medical leave policy to determine if those provisions complied with the FMLA.
The first policy required an employee on intermittent FMLA-approved leave to recertify the qualifying medical condition every ninety days even if the employee’s physician certified the need for intermittent leave for a period in excess of ninety days. The court ruled that this policy violated the FMLA. Specifically, the court held that although 29 C.F.R. § 825.308 (a) states that an employer may request recertification every thirty days for absences due to pregnancy or chronic and/or long-term conditions, that right is limited by 29 C.F.R. § 825.308 (b). Section 825.308 (b) states that if the employee’s health care provider has specified a minimum duration the employee needs for FMLA leave, the employer may not request recertification in less than the minimum period specified on the certification unless the employee requests an extension of leave, circumstances have changed, or the employer receives information that casts doubt on the validity of the certification. Thus, for example, if an employee’s certification form indicates that he or she has a chronic condition but also indicates that intermittent leave is needed for 180 days, an employer may not request recertification until the end of that 180 days unless an extension is requested, circumstances have changed or the employer has information that casts doubt on the validity of the certification.
The second policy required employees to provide the employer with a medical certification documenting their need for leave, when that need was unforeseen, within 15 days of their first absence. The court ruled that this policy also violated the FMLA based on 29 C.F.R. § 825.305, which states that an employee “must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s request), unless it is not practicable under the particular circumstances.” The court’s reading of this regulation was that employers are required to request certification from each employee on an individual basis and cannot start the 15-day clock running until that individual request has been made. The court further held that employers cannot rely on a policy provision that requires the return of the certification 15 days from the first day of absence as a blanket request for certification. Moreover, the court noted that such a policy would still violate the FMLA even if blanket notices were sufficient because it does not grant employees any leeway to provide the certification at a later time if circumstances so warranted.
The third policy prohibited employees from completing any portion of the medical certification form, under penalty of suspension or termination, even if the information completed by the employee was not false. The court ruled that this policy violated the FMLA because nothing in the law or regulations makes a certification insufficient if the employee completes some or all of the information on the certification as long as the certification was “issued” by the health care provider: “. . . in the Court’s opinion, a certification is ‘issued’ by a health care provider when he or she endorses the certification form, thus indicating agreement or adopting a belief that information contained in the form is accurate.”
This case underscores the importance of considering requests for FMLA leave on a case by case basis. It also underscores the importance of reviewing the FMLA and its regulations carefully whenever FMLA leave is being denied to an employee or medical leave policies are being drafted or revised. Specifically, as a result of this opinion, employers should review their FMLA policy’s provisions for compliance with the FMLA Regulations as interpreted by the court in this case, keeping in mind:
- If an employee has been approved for intermittent leave, an employer cannot require recertification of the leave until after the time specified in the medical certification unless an extension is requested, circumstances have changed or the employer has information that casts doubt on the validity of the certification;
- Medical certifications must be specifically requested for unforeseen employee absences and employees must be provided at least 15 days from the date of the request to return the certification (more time must be allowed under the appropriate circumstances); and
- Employers cannot mandate that only the employee’s health care provider complete certification forms.
If you have any questions about the decision or about developing or revising your FMLA policy, please contact a member of the Frost Brown Todd Labor and Employment Department.