• Be Thoughtful About FMLA Certifications
  • March 12, 2015 | Author: Fiona W. Ong
  • Law Firm: Shawe & Rosenthal LLP - Baltimore Office
  • Under the Family and Medical Leave Act (FMLA), an employer can (and should) require a certification from a health care provider to support an employee’s or the family member’s need for leave because of a serious health condition. This certification is the basis for determining whether the employee has a serious health condition requiring leave, which is then covered, and therefore protected, by the FMLA. It sets forth the parameters of what leave is medically required. Employers are, of course, entitled to rely on the certification - but not to the exclusion of all other information, as one employer learned to its great sorrow.

    (Quick refresher - a “serious health condition” under the FMLA includes incapacity of more than three consecutive days that also involves a visit to a health care provider and a supervised regimen of continuing treatment. It also includes chronic conditions, which can be episodic, requiring at least two doctor’s visits a year for treatment. These episodes do not have to last for more than three days.)

    In Smith v. AS America, Inc., a plant employee injured his back and was absent from work for three days. He submitted a request for FMLA leave, which included an FMLA certification form. The form stated the employee had a back condition that would require treatment visits at least twice a year. The form further stated there could be episodic flare-ups of the condition every three months, lasting 3-5 days per episode, during which time the employee would not be able to work. The employee’s three-day absence was recorded as FMLA leave.

    The following month, on February 5, the employee again strained his back. He reported to work on February 6, but had to leave because of his back pain. He called out on February 7 and 8, each time stating that his absence should be covered by his prior FMLA certification. The employee visited a health care provider on February 7, and the provider wrote a note stating that he had been seen on February 7 and excusing him from work on February 8. When the employee went to the plant on February 8 to submit his note, however, he was told that he was being terminated under the attendance policy for leaving early on February 6, and calling out on February 7 and 8. He was also given documents denying his January application for FMLA leave (even though the leave had already been recorded as FMLA! What ?!!) On February 11, although he had already been terminated, the employee submitted another FMLA request with a certification specifying that his back condition required continuing treatment, that it would cause episodic flare-ups, and that the current period of incapacity was February 7-9.

    In the ensuing lawsuit, the employee contended that his February absence qualified as a serious health condition both because he had an incapacity lasting more than three days with treatment from a health care provider and because it was a chronic condition. With regard to the first argument, the employer argued that the certification stated that the incapacity lasted for only three days - February 7-9. Therefore, it did not meet the relevant definition of a serious health condition, and the employer was entitled to deny FMLA coverage. The court, however, noted that the employer could not rely on the certification “to the exclusion of all other evidence it had at the time.” The court noted that the employer knew the employee had injured his back on February 5 and could not work on February 6. The employee, moreover, in calling out, had referenced his January FMLA application. Based on this information, the court found that the employer “should have reasonably concluded” that the period of incapacity lasted from February 5 at least through February 9 - more than 3 days.

    Furthermore, the court noted, the form does not require the health care provider to provide exact dates for the incapacity - it seeks the “approximate date the condition commenced” and the “probable duration of the condition,” and further requests the provider to “estimate the beginning and ending dates for the period of incapacity.” In addition, the court noted that the employee was fired even before submitting the certification, although his similar request the prior month for FMLA leave for a back injury had been granted. The court thus found “disingenous” (at the very least!) the employer’s claim that it relied on the February certification to deny FMLA leave.

    Moreover, the court noted that the employee was entitled to FMLA leave based on a chronic condition, as indicated in both FMLA certifications. The court rejected the employer’s argument that the condition cannot be considered chronic until it has lasted for a number of years. As the court logically noted, chronic conditions “undoubtedly have a starting point.” As long as the provider predicts that the condition will recur over an extended period of time, the condition could qualify as a FMLA-covered chronic condition.

    So, bottom line, employers should be reasonable when they rely on those health care provider certifications, and take into account other information they may have. If there is some discrepancy between the information and the certification, because the certification is vague, ambiguous or unclear, the employer could deem the certification insufficient and request, in writing, that the employee submit a sufficient certification. Assuming that the certification is technically sufficient, but is hard to read or the meaning is unclear, the employer could seek clarification of the certification, as permitted by the FMLA regulations. Furthermore, if the employer doubts the validity of the certification based on the other information available to it, the employer can require a second (and possibly a third) opinion. What the employer should not do is simply reject the certification!