Verizon did not interfere with an employee's FMLA rights when it denied her FMLA leave for failure to submit a personal certification form attesting that each of several intermittent absences at issue was due to her previously approved FMLA-covered migraine condition. Nor did Verizon's policy requiring all employees with approved FMLA conditions requiring intermittent leave to submit such personal certification constitute harassment in violation of the anti-discrimination provisions of the FMLA.
Verizon's attendance control policy required employees with approved intermittent FMLA leave to submit a written personal certification form attesting that a claimed intermittent absence was related to a previously approved FMLA-covered condition. Verizon sends the personal certification form to an address designated by the employee. Employees were given 25 days from the first day of absence to submit the form. Verizon policy required an employee to report that they had not received a form within five days of the first day of absence.
Plaintiff worked for Verizon as a Maintenance Administrator. She answered customer complaints about Verizon service and took orders for new service. At all relevant times, Plaintiff had an approved FMLA condition for migraines necessitating intermittent leave. Plaintiff alleged that Verizon interfered with her FMLA rights by denying her FMLA leave for various dates in May, June, and July 2003. She also alleged that Verizon harassed her by requiring that she submit the personal certification form each time she requested intermittent FMLA leave for migraines.
Verizon moved for summary judgment dismissing Plaintiff's FMLA claims. Verizon alleged that Plaintiff failed to submit the personal certification linking the absence at issue with her previously approved FMLA migraine condition. Nor did Plaintiff inform Verizon that she did not receive the forms, as required by Verizon policy. Under those circumstance, Verizon argued, the Plaintiff did not perfect her right to FMLA leave. As such, Verizon was within its rights to deny her FMLA leave for those instances. The Court agreed with Verizon.
Regarding Verizon's personal certification policy, the Court found that employers have " a legal right to institute procedures for verifying an employee's need for FMLA leave, plaintiff's failure to follow these procedures means that she was not entitled to any FMLA leave and cannot prevail on an interference claim here."
Plaintiff's failure to receive copies of the certification form was not, the Court founds, Verizon's fault. Plaintiff failed to provide Verizon with an updated address as required. Plaintiff was advised that the forms could be sent to an alternative address, but She refused to inform her employer of a new address. Verizon sent the forms to her addrsss of record. She was not stayting there any longer. Plaintiff also failed, the Court found, to inform Verizon that she had not received the personal certification forms as required.
Finally, the Court found that requiring employees to file paperwork to seek leave and to verify the reasons for absences is not harassment, "but a necessary part of ensuring that the FMLA leave program works equitably for all involved. Employers must develop such a system to comply with the law, and plaintiff offers no evidence that Verizon's behavior was so unreasonable as to constitute abuse."
Comment: The personal certification form used by Verizon to verify that a particular intermittent absence is related to a previously recognized FMLA condition, is not a form specifically authorized by the FMLA implementing regulations. Nor does the FMLA prohibit such a form either. It is a form that Verizon created. While the form is not described in great detail in the case, it appears that the form does not seek medical information, but simply asks the employee to certify that a claimed intermittent absences is linked to a previously recognized FMLA condition in order to track intermittent leave usage. The FMLA would prohibit an employer from requiring an employee to provide medical documentation every time the employee asks for intermittent FMLA leave for a previously certified FMLA serious health condition. There are limits on how often and what medical information an employer may require an employee to provide in support of FMLA leave.
The decision should be of a assistance to employers who wish to implement a written tracking system that enables it to link each intermittent absence to a previously approved FMLA condition. While being able to require an employee to submit a certification has its obvious weaknesses (the employee could fib), it may be better than nothing to tie each intermittent absence with a kown condition. Of course, from the employee perspective, it is just more paperwork hassles to deal with to exercise their FMLA rights.