The Federal Sector FMLA Blog

Requirement that Health Care Provider Submit Medical Certification Directly to Employer Does Not Violate the FMLA

In Taylor v. Ameritech Services, Inc., No. 07-2166, 2008 U.S. App. LEXIS 9237 (7th Cir. April 29, 2008), the court found that the employer did not interfere with the employee's FMLA rights by requiring that the completed medical certification form be faxed or mailed by the health care provider directly to the employer, rather than permitting the employee to provide the certification.  The court noted that:

Nothing in the statute forbids an employer to adopt reasonable, nonburdensome measures to prevent fraud.

The court reasoned that that an employee might "forge a letter from a doctor, or embellish it before forwarding it to the employer."

Comment:  To perfect the right to leave, the employee requesting leave bears the responsibility to ensure that an employer receives a medical certification, if one is requested.  The FMLA does not, however, address the method of delivery of a medical certification from the health care provider to the employer. 

The decision of the Seventh Circuit is based on the DOL FMLA regulations of Title I of the FMLA. Title I applies to non-civil service federal employees.  Under Title I, an employer may require an employer to comply with the employer's usual and customary procedural requirements for requesting leave.  29 CFR 825.302(d).  According to the Seventh Circuit, those permissible procedural requirements include the requirement that a supporting medical certification be directly submitted to the employer by the health care provider. 

Title II of the FMLA applies to federal civil service employees.  The OPM FMLA regulations are not identical to the DOL regulations regarding an employer's "usual and customary policies and procedures."  The OPM regulation, 5 CFR 630.1206(e), focuses exclusively on the employer's usual and customary notice requirements for requesting leave.  In contrast, the DOL regulation addresses the employer's usual and customary "notice and procedural requirements for requesting leave."  29 CFR 825.302(d).  It could be argued that the exclusion of "and procedural requirements" in the OPM regulations limits the reach of an employer's "usual and customary" procedures to notice only, and not to certification issues.  Such an interpretation would render Taylor inapposite to civil service employees.    

Having said that, the OPM FMLA regulations do not specifically prohibit an employer from requiring direct submission of a medical certification from a health care provider. The issue is simply not addressed. 

Direct submission of medical information from a health care provider to an employer gives rise to HIPPA issues.  Generally, HIPPA prohibits disclosure of medical information to an employer absent patient authorization.  However, an employee who exercised their HIPPA right and refused to authorize direct disclosure of medical information as required by employer policy would almost certainly loose FMLA protections.  The employee may also be subject to disciplinary action for violating such an employer policy.   

Federal employers concerned with fraud may want to consider implementing a reasonable policy requiring that any medical certification be submitted directly by the health care provider.  Federal employers need to think through such a policy for civil service employees in light of the differences between the language of the DOL and OPM regulations.

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.   

MSPB Confusion Over FMLA Rights

Recent decisions demonstrate that the Merit Systems Protections Board is confused regarding the FMLA rights of federal sector employees.  The Board has repeatedly and incorrectly applied the wrong variant of the FMLA.  It has also erroneously cited to the OPM and DOL FMLA regulations interchangeably as if those regulations both applied to all situations.  That is simply not the case. 

There are four federal sector variants of the FMLA that apply to different segments of the federal workforce.  While identical in some areas, the variants are materially different in others.  As such, the federal sector FMLA variants are not interchangeable.  Application of the requirements of one variant of the FMLA may violate the FMLA rights of an employee covered by another FMLA variant.  To avoid FMLA errors, the Board needs to apply the correct FMLA standard. 

 

Calling and/or Requiring an Employee to Work While on FMLA Leave Constitutes Interference with FMLA Rights

In denying summary judgment to the employer, the court in Kesler v. Barris, Scott, Denn & Driker, PLLC, No. 04-40235, 2008 U.S. Dist. LEXIS 31577 (E.D. Mich. April 17, 2008) found that employer questions to employees while on FMLA leave and employer requests that an employee perform work duties while on FMLA leave "are sufficient to constitute an FMLA interference claim is supported by relevant case law." 

Comment:  While an employee is on FMLA leave employers would be well-advised to avoid contacting the employee on work-related issues.  Asking or requiring the employee to perform work while absent on FMLA leave is simply out of the question. 

Some courts have allowed a de minimis amount of employer contact (e.g., where is a file type questions) without finding an FMLA violation.  The more contacts, and/or the more extensive the contacts, the more likely that an employer will be found to have interfered with the employee's FMLA rights. 

Grant of Leave Was Illusory Where Employee Was Required to Perform Full Duties While on Intermittent FMLA Leave

In reversing the award of summary judgment to the employer, the Seventh Circuit in Lewis v. School District #70, No. 06-4435, 2008 U.S. App. LEXIS 8248 (7th Cir. April 17, 2008) cited as evidence of retaliation the School's expectation that Lewis complete all of the duties of her full-time bookkeeping position while she was working on a part-time basis while she used intermittent FMLA leave.  Because she did not meet that expectation, the School permanently removed her from her position.

The court found that a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. 

The School, the court noted, had numerous options consistent with the mandates of the FMLA that did not require Lewis to perform her full-time duties while working part-time.  The School could have: (1) shifted the work to other employees during the time Lewis was taking intermittent FMLA leave; (2) hired part-time help; or (3) transferred her to another position temporarily. 

By holding Lewis to the unrealistic expectation that she should accomplish satisfactorily all of her duties of the bookkeeper position during her period of FMLA-protected intermittent leave, a jury, the court concluded, could find that the School violated the FMLA when it decided to permanently remove her to another position.   

Comment:  An employee on intermittent FMLA leave is required to meet the reasonable expectations of his or her position while at work.  Unrealistic expectations of what an employee can accomplish during the intermittent or reduced leave schedule may be evidence of retaliation for exercising FMLA leave rights sufficient, at least, to defeat an employer's s motion for summary judgment.  Even if it is ultimately decided in favor of the employer, the inability to secure summary judgment makes the case much more expensive for an employer. 

To ensure FMLA compliance, employers should set realistic performance expectations during an employee's use of FMLA leave on an intermittent or reduced leave schedule. 

   

Paid Week of "Love Leave" Proposed

Proposed legislation would grant workers the right to a week of paid leave for a "love vacation" to reduce, its sponsor said, the high divorce rate and "revive passion in a population whose workdays are growing longer."  During the seven days, "couples could devote themselves to eachother both at an erotic and emotional level and find their way back to the path of love in order to find the wellspring of love again."  The proposed legislation has 13 co-sponsors. 

Comment: American employers can breathe a sigh of relief as the legislation was proposed in Finland, where employees are already entitled to 25 paid days of vacation a year plus 10 paid public holidays.  Makes the FMLA look rather tame by comparison. 

You can view a news article on the issue at http://www.boingboing.net/2008/03/16/finnish-mp-proposes.html

Alter Medical Certification, Lose FMLA Protections

An employee who alters a medical certification form without the permission of the health care provider is not entitled to FMLA leave, regardless of whether the unaltered form would have supported FMLA coverage.  Such falsification is also independent grounds for disciplinary action.

In Smith v. The Hope School, No. 06-3244, 2008 U.S. Dist. LEXIS 29544 (C.D.Ill. April 10, 2008), the employee requested FMLA leave due to stress.  In response to the School's request, Smith secured a medical certification from her physician.  The doctor indicated that Smith suffered a serious health condition as a result of severe recurrent muscle tension headaches and  neck and arm pain as a result of work-related trauma. 

It is undisputed that Smith added the words "plus previous depression" to her doctor's description on the certification form.  She did not consult with her physician before adding this information.  Smith had never been diagnosed with depression.  She faxed the form to her employer. 

Believing that the medical certification had been altered, the School contacted Smith's doctor to check.  The School did not obtain Smith's consent before checking on the authenticity of the certification. The School confirmed that the FMLA paperwork had been altered.  The School next contacted a DOL representative, who advised that the School could deny Smith FMLA leave based on the alteration of the FMLA documentation.  That is what the School did.  The School subsequently terminated Smith for falsification of paperwork and failure to show up on three occasions.

Smith sued, alleging that the School improperly denied her FMLA leave and terminated her in retaliation for exercising her rights under the FMLA.  The School moved for summary judgment seeking to dismiss Smith's FMLA lawsuit.

Based on a review of the case law, the court found that falsification of a certification is grounds for denial of leave regardless of whether the unaltered form would have supported the employee's FMLA leave request.  The court also held that termination may be an appropriate response to the alteration of a certification form, even if the unaltered form would have supported leave. 

The court found that the School violated the FMLA by contacting Smith's doctor directly without first obtaining Smith's consent, as required by 29 CFR 825.307.  The violation, the court went on to find, was without a remedy because it did not interfere with, restrain or deny Smith's FMLA rights. 

The court reasoned that the School would have denied the leave anyway whether Smith granted such permission or not.  If permission was granted, the School would have received the same information it obtained through its unauthorized phone call: that the doctor did not certify that Smith previously suffered from depression.  If Smith refused permission, the School would have denied her FMLA leave request.

The court also reasoned that the School did not base its FMLA denial on the fact that her doctor did not diagnose Smith with depression; it based its denial, in part, on its belief that she falsified the certification form.

Because she falsified her medical certification, Smith, the court found, did not engage in protected activity.  As such, she could not make out a prima facie FMLA retaliation claim. 

Comment: Courts have had very little sympathy for employee's who alter FMLA medical documentation. The better practice is for the employee or covered family member to request that the health care provider make any changes on the existing form, or issue a brand new certification, before it is submitted.  At minimum, an employee should obtain the prior approval (preferably in writing) of his or her health care provider before submitting an altered FMLA medical certification. 

DOL Issues Temporary Mandatory FMLA Poster Addressing Military Family Leave Amendments

The U.S. Department of Labor (DOL) recently released a temporary FMLA poster addressing the recently enacted changes affecting leave for military families. It is meant as a temporary mandatory insert to be posted along side your current DOL FMLA poster.  In all likelihood, the DOL will not issue a final version of a combined FMLA poster at least until it publishes regulations to implement the military family leave amendments.

To obtain a copy of the new temporary FMLA poster, follow the attached link.  http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

All federal employers must post the DOL FMLA poster.  Title I of the FMLA defines the federal government at large as an employer for FMLA purposes.  All Title I employers must post the required FMLA poster whether they have eligible employees or not.  Federal employers must post the DOL FMLA poster even if all of your employees are in the civil service and, therefore, are covered by the OPM FMLA (Title II) regulations.  OPM does not have a similar posting requirement.   

Posting the DOL amended poster will likely cause confusion for federal employers whose work force is predominately civil service employees.  As amended, the poster inform employees of their right to military family leave.  The problem is that there are two forms of military family leave under Title I, only one of which applies to civil service employees.

Eligible federal employees covered by Titles I and II may take FMLA leave to care for a servicemenber who is recovering from a serious illness or injury sustained as a result of active military duty.  Non-civil service employees will soon enjoy the ability to take FMLA leave for a "qualifying exigency" related to a covered family members active military service.  Congress did not define "qualifying exigency," leaving it to the DOL (hence the wait). 

Civil service employees will not enjoy the right to take leave due to a "qualifying exigency" related to a family members active military service.  As such, the DOL requirement that all federal employers post the DOL notice will likely be confusing to many federal employees.

In light of the mixed FMLA coverages in the federal workforce, DOL should allow federal employers to add language to the FMLA notice clarifying that it applies only to non-civil service employees.  OPM should create an FMLA poster for civil service federal employees.

Employer is Not Entitled to Diagnosis in FMLA Medical Certification

Lisa McDougal submitted a medical certification in support of her request for FMLA leave due to nausea and pain in her abdomen and back.  On the supporting WH-380 form, McDougal's doctor indicated that she suffered from a serious health condition involving incapacity of more than three days plus health care provider treatments.  In the medical facts section of the form, the doctor noted that McDougal suffered from abdominal pain, vomiting and lumbar pain.  The doctor also indicated that the McDougal was unable to perform work of any kind, the date the condition commenced, that the probable duration was unknown, and that the employee was subject to a regimen of continuing treatment under his supervision by prescription medication. 

The employer provisionally approved FMLA leave.  However, the employer noted that the certification was vague because it did not state the diagnosis with specific reasons for the incapacity.  The certification also needed to provided a better idea of how long it could last.  The employer provided a second certification to McDougal with instructions to have it completed by a specialist.  McDougal never returned the second certification form.  The employer subsequently terminated McDougal.  McDougal sued alleging interference and retaliation in violation of the FMLA.

In awarding partial summary judgment to MacDougal, the court found that it was improper for the employer to ask for a diagnosis.  The FMLA limits the information an employer is entitled to demand in a medical certification.  A medical diagnosis is not, the court found, required. 

The court also found that the employer did not have the right to require MacDougal to submit a second medical certification.  The employee reviewing the form for the employer conceded during depositions that she needed clarification of the health care condition.  By operation of DOL regulations (29 CFR 825.307), the court found that clarification assumes that the certification is complete.  When clarification is sought, a health care provider representing the employer may, with the employee's consent, contact the employee's health care provider for clarification purposes.  The employer did not do that in this case.  The regulations do not permit an employer to require an employee to submit a completely new certification to clarify ambiguities in a complete certification.

Because it was improper for the employer to request the second medical certification, it was, according to the court, equally improper to terminate the employee for her failure to provide it.

McDougal v. Altec Industries, Inc. No. 07-15-C, 2008 U.S. Dist. LEXIS 28765 (W.D. Ky. April 8, 2008)

Comment:  With the exception of pregnancy, an employer is not entitled to a medical diagnosis naming the employee's serious health condition.  An employer that insists on a medical diagnosis as part of the medical certification violates the FMLA. 

Employers are only entitled to certain information in support of an employee's request for FMLA leave.  Employers that condition the approval of FMLA leave on receipt of medical information that is not specifically permitted, like diagnosis, will run afoul of the law.  To be safe, employers should use the DOL-approved WH-380 form, and determine FMLA leave requests based only on the information the form allows you to request.

Note that the court also found that an employer cannot insist that an employee submit an entirely new medical certification where the employer only seeks clarification of an otherwise complete certification.  Rather, where the clarification process is invoked, an employer is limited to having the employer's health care provider, with the employee's s permission, contact the employee's health care provider   

The above is applicable to all federal employees. 

Reasonable Accomodation to Facilitate Employee's Return to Work from FMLA Leave Not Required

An employer is not required to reasonably accommodate a full-time employee with part-time work to facilitate the employee's return to work from FMLA leave. 

In Baker Hunter Douglas, Inc., No. 06-5149, 2008 U.S. App. LEXIS 5807 (3d Cir. March 19, 2008), the employee alleged that Hunter Douglas violated the FMLA when it refused to reinstate to her same or an equivalent position at the conclusion of her 12 weeks of FMLA leave.  On the last day of her FMLA leave Baker returned to work to discuss the possibility of returning to work part-time.  Prior to taking leave, Baker held a full-time marketing position.  Hunter Douglas indicated that it did not have any part-time positions.  Baker otherwise failed to submit medical documentation clearing her to return to work full-time.  Baker was eventually terminated. 

In affirming the dismissal of the FMLA claim by the trial court, the Third Circuit agreed that Baker had failed to establish that she could work full-time after exhausting her 12 weeks of FMLA leave, which the court found was an essential function of her position.  The FMLA did not require Hunter Douglas to reasonably accommodate an employee who is unable to perform all of the essential functions at the conclusion of 12 weeks of FMLA leave. 

Comment:  The FMLA does not require an employer to reasonably accommodate an employee who is unable to perform all of the essential functions of their pre-leave position at the conclusion of their 12 weeks of FMLA leave.   Of course, if the employee's serious health condition also meets the definition of a "disability" the employer may be required to reasonably accommodate the employee with, among other options, part-time work.  Similarly, an employer's policies may also require what amounts to reasonable accommodation. 

Reminder: Time is Running Out to Submit Your Comments to the DOL Regarding Changes to the FMLA

You have one more week, until April 11, 2008, to submit comments to the DOL regarding: (1) proposed changes to the existing FMLA regulations; and (2) offer suggestions regarding what regulations the DOL should adopt to implement the newly enacted military family leave provisions.

The proposed regulatory changes may be viewed at: http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf

Comments may be sent to the DOL electronically at http://www.regulations.gov

You may also mail comments to:  Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW Washington DC 20210.

The DOL strongly encourages that you submit your comments electronically.

NOTE TO FEDERAL EMPLOYERS AND EMPLOYEES.  The OPM is working with DOL to develop regulations to implement the military family leave amendments to Title II of the FMLA.  You may be able to indirectly impact what regulations OPM proposes by offering suggestions to the DOL.   

Help shape the FMLA.  Provide your FMLA comments to the DOL.