In Nawrocki v. United Methodist Retirement Communities, Inc., No. 05-1058, 2006 U.S. App. LEXIS 7939 (6th Cir. March 31, 2006), the court affirmed the dismissal of the employee’s complaint the medical certification submitted by the employee did not establish that the employee had an FMLA-covered serious health condition. Ms. Nawrocki was absent due to a painful ear infection. She provided his employer with a note from the physician’s assistant who treated her identifying the fact that she had an ear infection that was being treated with prescription medication, but, critically, indicated that it would not be necessary for Ms. Nawrocki to be absent from work to receive treatment. Relying on the certification, the employer denied the employee’s request for FMLA leave to covered absences due to the ear infection. The absences were counted against the employee pursuant to the employer’s attendance control policy, resulting in Ms. Nawrocki’s termination. The Court found that the employer was entitled to rely on the “negative certification” which failed to indicate that Ms. Nawrocki needed to be absent from work. On the contrary, the form indicated that it was not necessary for him to be absent to receive treatment.
Comment: The courts are split on the effect of a negative certification. Some courts have held that an employer may simply rely on the “negative certification” without further inquiry. Other courts require employers to notify the employee that the certification fails to support their request for leave and to give the employee a reasonable opportunity to cure the identified problem with the medical certification. .