To perfect a request for FMLA leave Title II federal employees may be required to submit administratively acceptable medical certification. 5 CFR 630.1207(b).
In Phillips v. Dept. of Veterans Affairs, No. PH-0752-09-0163-I-1, 2009 MSPB LEXIS 4214 (July 16, 2009), the Board held that, even if the employee suffered from an FMLA-covered serious health condition, the VA did not violate the FMLA when it denied her leave for failure to timely submit a supporting medical certification requested by the agency.
Phillips requested FMLA leave on September 8, 2008. The Agency mailed Phillips the medical certification form shortly thereafter. Phillips claimed she did not get the form because she had been evicted from her residence and was living in her car. She did not, however, apprise the agency of the change in her address of record. She had the opportunity to do so in person on September 19, when she presented a doctor's note to the agency in person regarding a separate absence. Phillips did not provide the FMLA medical certification form to her doctor until October 27, some three weeks after issuance of her notice of proposed removal. Her physician submitted the completed form on October 29.
The MSPB AJ found that it was Phillips' responsibility to apprise the agency of how to contact her, and that it would be "patently unfair to fault the agency for the appellant's inability to maintain a valid address." The AJ also found it inconceivable that, if she did not have the medical certification that she would not have requested it in person on or before September 19. The Board found that "appellant did not conscientiously pursue or timely submit documentation in support of her FMLA request." As such, her charged absences were not protected by the FMLA.
Comment: When medical certification is requested, employees must make a good faith, diligent effort to timely provide certification in support of their request for FMLA leave. An employee who, under the circumstances, fails to act reasonably to timely secure such certification risks losing FMLA protections, even if they have an FMLA-covered serious health condition.