The FMLA Blog

Employers Are Not Required to Assume That All Medical Absences Subsequent to Chronic Serious Health Condition Diagnosis Are Related to that Condition

Jeremy Crown was diagnosed with Type I Diabetes in August 2006.  Nissan, his employer, granted his request for 10 days of FMLA leave to cover the absence that led to the diagnosis.  In October 2007, Crown was absent from work for three consecutive days.  Crown claimed that the absences were related to his Diabetes.  Pursuant to Nissan policy, he submitted a medical certification substantiating his request for FMLA leave to cover the absence.  The health care provider who filled out the certification checked the box for an absence of more than three consecutive days.  The health care provider did not check the box for a chronic condition.  Nissan denied the request for FMLA leave because Crown was not incapacitated for more than three consecutive calendar days.  Nissan also assessed Crown with 4 points for unexcused and excused absences.  The four points put him over the company's attendance policy limit.  Crown was terminated.

Crown sued alleging that his termination violated the FMLA.  Crown argued that, notwithstanding the failure of the medical certification to substantiate his request for FMLA leave, Nissan should have granted him FMLA leave anyway.  Crown reasoned that Nissan knew he had an FMLA-covered condition (Diabetes) since August 2006.  It knew that the condition would continue for an indefinite period.  As such, Nissan, Crown argued, should have known that this three-day absence in October 2007 resulted from a period of incapacity due to his chronic serious health condition because it was aware that he had this condition and was likewise aware that the condition had previously necessitated leave.  Crown contended that he should not be penalized because of the lack of competence or familiarity of the health care provider who filled out the certification.  The court disagreed.  

The court rejected as without merit the argument that Nissan should have known that that his absences were related to his chronic condition despite the health care providers failure to so indicate simply because it knew he had been earlier diagnosed with a chronic condition.  The court observed:

By this argument, plaintiff is, in effect, contending that once an employer is on notice that an employee has a chronic health condition, the employer must thereafter assume that all medical absences from work are related to that condition. This position is directly contradicted by those provisions of the FMLA which permit the employer to require notice that leave is requested for a a qualifying reason and which authorize the employer to require the plaintiff to furnish certification for his health care provider that each period of absence is covered by the FMLA. 

The court went on to observe that "[t]he FMLA does not require an employer to be 'clairvoyant.'"  If an employee fails to provide its employer with the required notice, the employer can deny leave even if the employee has a serious health condition. 

The court awarded summary judgment to Nissan.

Crown v. Nissan North American, Inc., No. 3:08CV418TSL-JCS, 2009 U.S. Dist. LEXIS 47633 (S.D. Miss. June 8, 2009). 

Comment:  To ensure FMLA coverage where an employee or covered family member has a previously established qualifying reason for FMLA leave, it is incumbent on the employee to link the present need for leave with the known qualifying reason.  Courts will not assume such a connection, particular where, as in Crown, the connection is not substantiated in a supporting medical certification. 
The DOL codified the linkage requirement in 29 CFR 825.303(b) of the modified regulations.

The case also teaches employees that they should review the medical certification before handing it in to ensure that it supports the request for leave.  If it does not, or if the employee has any questions regarding the information on the form, the employee should take the matter up with the health care provider before submitting the documentation.  The health care provider should make any corrections on the certification form.  The employee should NOT modify the certification form.    

Employers Are Not Required to Provide Miranda-Like Warnings of Discipline if FMLA Protections Are Not Requested

In Knox v. City of Monroe, No. 07-606, 2009 U.S. Dist. LEXIS 1014, at *18 (W.D. La. Jan. 8, 2009), the court rejected the employee's FMLA interference claims based on supervisor's alleged failure to warn her that she could be fired for excessive absenteeism if she did not protect herself by requesting FMLA leave. The supervisor warned Knox that she could be disciplined if she continued to incur excessive absences.  He also offered Knox FMLA leave, which she specifically declined.  The court opined that the supervisor "had no duty under the FMLA to threaten Knox with discharge, so that she could preemptively claim FMLA protection."

Comment: Employees who decline an employers suggestion of FMLA leave have not fared well in the courts when they subsequently challenge attendance-based discipline.  Employers satisfy their FMLA notice requirements by recognizing that a situation my involve the FMLA and alerting the employee to the availability of FMLA leave.  Where this has occurred, an employee who nevertheless declines FMLA protections, perhaps in an effort to stretch the amount of leave available, is exposed to discipline.  Of course, the employee might argue FMLA retaliation.  Such an argument was advanced, and rejected in Knox.  Basically, the court found that Knox did not engage in protected activity where she specifically declined FMLA protections.  The court did not credit her somewhat vague comment that she might take FMLA leave in the future (which she never did). 

The moral is: FMLA leave is protected from discipline.  An employee who affirmatively declines FMLA protections necessarily risks discipline.  And an employer is not required to point out that distinction to the employee.                   

Third Circuit Finds Adequate Notice of Need for FMLA Leave Does Not Require Exact Dates and Duration of Leave

To perfect the right to FMLA leave an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.  In providing notice, the employee need not use any magic words.  The employee does not have to expressly assert rights under the FMLA or even mention the FMLA.  The critical question is how the information conveyed to the employer is reasonably interpreted. 

An employee who needs medical treatment may inform his or her employer of the need for leave before scheduling treatment in order to reasonably accommodate the needs of the employer.  An employee who does not cite to the FMLA or provide the exact dates or duration of the leave nonetheless may provide his or her employer with sufficient information to reasonably apprise the employer that the employee's request may be covered by the FMLA.

In Sarnowski v. Air Brooke Limousine, Inc., No. 06-2144, 2007 U.S. App. LEXIS 28668 (3d Cir. Dec. 12, 2007), the Third Circuit vacated and remanded the award of summary judgment to the employer dismissing the Sarnowski's FMLA interference claim.  In that case, Sarnowski was terminated eight days after informing his supervisor that his doctor had advised him of the need to monitor his heart and the possible need for additional surgery and 6 weeks of leave.  At the time, Sarnowski had only recently returned to work after missing 6 weeks of work due to quintuple coronary artery bypass surgery.  The court found that the Air Brooke had sufficient notice of Sarnowski's intent to take leave to bar Air Brook from interfering with his FMLA rights.

Comment:  FMLA protection can be invoked by employee notice that they may need FMLA leave at some unknown time in the future and for an unknown duration.  The decision certainly can be interpreted in a way that invites employee abuse. 

For example, an employee who may need intermittent leave at some unknown point in the future notifies the employer of a serious health condition in accord with Sarnowski.  Three years later the employee is absent without warning. The employee claims that adequate notice of the need for leave was provided three years earlier. 

Employers might argue that notice three years earlier was insufficient. Remember, Sarnowski required that the notice provide the employer with "reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA."  The facts of Sarnowski suggest that a determination of the need for surgery and additional leave pending the results of further monitoring was reasonably imminent, not open-ended.  Of course, one could argue the opposite; that court in Sarnowski did not place any time limit on when leave must be taken after notice is provided.

Allowing employees to request leave even though they don't know if or when it may start also burdens the employee.  The FMLA places temporal limitations when an employee must request leave based on whether the need for leave is foreseeable or not.  Employer's could argue that Sarnowski requires employee's to notify the employer of the need for leave even though the employees does not yet know the schedule or amount of leave needed.  If the employee waits until they know their leave schedule their request for leave may be untimely.  If the request is untimely, an employer may have the right to delay or deny FMLA leave.

Notice in Handbook Requiring Employee to Provide Medical Certification Insufficient Absent Timely Employer Request

An employer must specifically ask that an employee submit medical certification at or around the time leave is requested.  Absent such a timely and specific request, notification in an employee handbook that an employee must provide medical certification is insufficient to place the employee on notice that medical certification was required in order for the employee to perfect his/her request for FMLA leave. 

In Lucterhand v. Granite Microsystems, Inc., No. 05-CV-1047, 2007 U.S. Dist. LEXIS 15072 (E.D.Wisc. Mar. 2, 2007), Plaintiff Mark Lucterhand re-injured his knee at work.  He underwent surgery and was released from the hospital five days later.  He used three days paid sick leave and two vacation days during this time.  There is no question that the employer was aware of the reason for his leave.

Lucterhand returned to work with no restrictions but with limited mobility.  Essentially, he was released to return to work at his request based on pressure to return to work quickly from his employer.  The physician who released him did so with the understanding that, as acting director of global operations, he would spend most of his time behind his desk and off his feet.  Lucterhand return to work but attended two physical therapy appointments each week for several weeks, and also had follow-up visits with his surgeon.  Because he could not drive, Lucterhand also used public transportation, which also limited his availability at work. 

After his return his employer received profit estimates that fell short of expectations.  Lucterhand's supervisor expressed his displeasure with the performance of his operation.  The supervisor began to make statements suggesting that Lucterhand should have been on the workroom floor more helping, which he could not do because of his knee surgery.  Lucterhand was terminated a month after returning to work.  Lucterhand alleges that he was told he was terminated because the company did not believe that his injury was as extensive as claimed.  The company alleges that it terminated Lucterhand because of poor performance.  Lucterhand sued alleging violation of the FMLA.

The Company handbook contains an FMLA policy.  In pertinent part, the policy required an employee to provide the company with a certification of health care provider form to perfect his/her right to FMLA leave.  Company policy also provided that employee's could elect to substitute paid leave for unpaid leave.  In the event that an employee failed to meet the certification requirement, company policy provided that the leave request may be delayed or denied. 

Lucterhand never specifically asked for FMLA leave or provided Granite with a medical certification.  As a consequence, the employer argued that Lucterhand failed to perfect his right to FMLA leave, and, therefore, his FMLA retaliation claim must fail.  Lucterhand contended that the defendants' undisputed knowledge of his injury provided Granite with sufficient notice that Lucterhand's leave may qualify as FMLA leave.  The court agreed with Lucterhand.

The employer also argued that Lucterhand's failure to provide certification from a health care provider in accordance with the handbook was fatal to his FMLA claim. The Court disagreed.  The Court distinguished the cases relied on by the employer, noting that in those cases the employee failed to provide medical certification that had been specifically requested by the employer at or around the time the employee gave notice of the need for FMLA-qualifying leave.  None of the cases, the Court observed, involved the situation, as in Lucterhand, where the employer simply relied on language in their employee handbook to provide notice to the employee of the certification requirement and made no specific request for certification.

Comment:  Employers must notify employees each time it intends to require medical certification.  29 CFR 825.305(a).  Notice generally must be provided at the time the employee gives notice of the need for leave or within two business days thereafter.  29 CFR 825.305(c).  Absent a specific request for certification, an employer may not simply rely on the fact that the medical certification requirement is set forth in an employee handbook or manual.

Interestingly, the employer argued in the alternative that Lucterhand's failure to follow the procedures set forth in the handbook rendered his request for leave outside of the protections of the FMLA.  Granite argued that by failing to provide medical certification in accordance with company policy Lucterhand's absence was not covered by the FMLA.  The Court disagreed, concluding that the employer was aware that the absence could be FMLA qualifying from the known facts of his injury.  The employer could have confirmed that by conducting an investigation and/or requesting medical certification but did not. 

I think the Court missed the employer's argument. The argument is not about the adequacy of the employee's notice of the need for FMLA leave.  Rather, it was whether the employee was affirmatively electing not to have the leave covered by the FMLA by failing to abide by the known requirements of company leave policy to support FMLA leave with medical documentation.  A few courts have suggested that the failure to follow known company leave procedures does not permit an employer to deny otherwise qualifying FMLA leave, but it could be evidence to suggest that the employee was not requesting FMLA leave at all. 

Absent Prejudice, Employer's Failure to Notify Employee of FMLA Responsbilities Did Not Interfere with Employee's FMLA Rights

In Reifer v Colonial Intermediate Unit 20, No. 4:05-1906, 2006 U.S. Dist. LEXIS 80996 (M.D.Pa. Nov. 7, 2006), the court concluded that the employee had failed to establish that her employer interfered with her FMLA rights by failing to notify the employee of her rights under the FMLA. 

The FMLA makes it illegal for an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" under the FMLA.  "Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the" FMLA.  29 CFR 825.220(b).  Interference with an employee's rights includes an employer's failure to advise the employee of her rights under the FMLA. However, to prevail on an interference claim based on failure to advise, the employee must show prejudice by "establish[ing] that this failure to advise rendered him unable to exercise that right in a meaningful way, thereby causing injury."  The Court observed that employer notice of FMLA rights "enables an employee to not only know that she has at least twelve weeks of protected leave, but also to structure her work schedule and leave around the twelve guaranteed weeks."

Here, the court found that there was no evidence that the defendant employer had informed the plaintiff of her FMLA rights.  However, the court also found that the plaintiff failed to establish any prejudice.  The court noted that the plaintiff was off work for approximately twenty-five weeks before she was informed of a termination hearing to address her continued absence from work, more than twice as long as the protected leave period under the FMLA. The court also observed that the employee was absent from work for more than five additional months after the termination hearing before she was terminated. 

Second, the employee was unable to perform the essential functions of her job and could not return to work after the 12 weeks of protected FMLA leave.  The court rejected the employee's claim that, had she been advised of her FMLA rights, she would have restructured her leave in such a way as to preserve her FMLA rights.  The record evidence, the court found, established that plaintiff could not work at all after her injury and made no effort to attempt to return to work within the FMLA framework.  The court noted that absence of record evidence establishing that, given the extent of her claimed injuries, she could have restructured her leave in a way that she would have allowed her to return to work within the 12 weeks of FMLA leave.  As such, the court concluded that the plaintiff failed to establish that she was prejudiced by the employer's failure to notify her of her FMLA rights and obligations.

Comment:  The case typifies the way courts address FMLA interference claims where the employee remains out of work for more than 12 weeks and the employer fails to notify the employee of his/her FMLA rights and obligations.  An employee's right to return to work is from FMLA leave only.  As such, if an employee is absent in excess of their annual 12 workweek entitlement the employee's FMLA right to return to work lapses.  An employee who is terminated, or who is offered a non-equivalent position from the one they held when leave commenced, will argue that they remain entitled to the FMLA right to be returned to work to their same or equivalent position because they would have returned to work prior to the expiration of their FMLA benefits had the employer properly notified them of their FMLA rights and responsibilities.  Because the employer did not notify them of their FMLA rights, the argument goes, they should be excused for not returning to work before the expiration of their twelve weeks of FMLA leave. 

This area was greatly impacted by the decision of the U.S. Supreme Court in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).  There, the Supreme Court invalidated the penalty provisions of the DOL FMLA regulations for an employer's failure to notify an employee that it had designated leave as FMLA qualifying.  Employers are required to timely notify employees that they have designated leave as FMLA qualifying.  Where an employer fails to notify an employee of such leave designation, the employer is directed to provide the employee leave with all of the benefits and protections of the FMLA, but not count the leave against the employee's twelve week FMLA leave entitlement.  The Supreme Court found the penalty provision invalid as it could result in some employee's receiving more than the Congressionally mandated maximum twelve weeks of FMLA leave as a penalty for a notice violation.  However, the Supreme Court kept the door open for FMLA interference claims where the employee could establish both that the employer failed to provide notice of FMLA rights and the employee suffered injury as a result of that lack of notice. 

As in Reifer, courts will not find that an employee has established prejudice as a result of an employer's notice failure where the employee cannot establish that they would have been able to return to work before the expiration of their 12 week FMLA leave entitlement had they received proper notice of their FMLA rights.

Employer Not Required to Provide Employee Advance Notice that FMLA Ends on the Death of Covered Family Member

In Fatima v. Laboratory Corp. of America, No. 04-5739 (JAP), 2006 U.S. Dist. LEXIS 75724 (D.N.J. Oct. 18, 2006), the court held that the employer did not violate the notice provisions of the FMLA because it did not expressly provider the employee with advance notice that, should her father pass away while she was on FMLA leave, her leave would expire. 

Fatima received word on October 2, that her father had been hospitalized in India and was suffering from a serious health condition.  She informed her supervisor the following day that her father was ill and she needed to travel to India immediately.  The employer provisionally designated the leave as FMLA-qualifying subject to receipt of medical certification.  The employee subsequently faxed a copy of a completed certification from her father's physician while she was in India.  On the same day she sent the fax her father passed away.  Fatima did not convey the death of her father to her employer.  The employer approved the request for FMLA leave a few days later.  The employer subsequently learned of the passing of the employee's father through a co-worker.  The employer informed the employee that it expected her to return to work the next day.  The employee was still in India and indicated that it would be impossible for her to return to work the next day. When she did not return to work the next day she was terminated.

The court noted that the DOL FMLA regulations mandate that employers provide written notice detailing eight items addressing specific employee expectations/obligations, and the consequences to the employee for failure to meet these obligations.  The employee failed to establish that her employer interfered with her FMLA rights, the court found, because the FMLA and the DOL regulations "did not require LabCorp to provide express notice that should Plaintiff's father pass away, her leave would expire."  Providing notice to employees that FMLA leave to care for a sick family member terminates upon the death of that family member "is not one of the eight items of which employers must provide notice.  Rather, it is "other information" that employers "may include." 

Comment:  FMLA leave is generally not available for bereavement.  The FMLA does not prohibit employer from notifying employees that FMLA leave to care for a covered family member ceases on the death of that family member.  Also, the employee might be entitled to FMLA leave if, for example, the loss of the covered family member caused the employee to suffer a serious health condition.  Labor unions and other organizations representing the interests of employees should consider securing the employer's agreement to notify employees that leave ceases on the death of the family member who the employee was caring for. 

Posting Notice of FMLA Rights on Employer's Website Satisfied FMLA Posting Requirement

In a case of first impression, the First Circuit in Dube v. J.P. Morgan Investor Services, No. 05-2487, 2006 U.S. App. LEXIS 25567 (1st Cir. Oct. 13, 2006) found that the employer satisfied the requirement in 29 CFR 825.300(a) that it post notice of FMLA rights and obligations by posting its FMLA notice on the employer's intranet website.  The intranet website was accessible to all employees while they were at work.  The court rejected the employee's argument that intranet positing was insufficient because he did not have access to it from home during his leave period.  The court found that the employer was not required to "post the notice where it could be seen by employees at home; the regulation only requires that the notice be posted at the workplace, and Dube cites no authority to support his suggestion that this rule is different where the notice is posted electronically.

Comment: The decision sanctions the use of electronic posting in lieu of physical posting of the DOL FMLA Poster.  The decision applies to Title I of the FMLA.  The OPM regulations implementing Title II do not include a posting requirement per se, but merely require that employees be informed of their FMLA rights and obligations with the suggestion that this may be accomplished by affording employees access to the statue and regulations.  Presumably, this could be done electronically as well.  The CAA and the PEOAA do not have posting requirements.  The First Circuit covers Maine, New Hampshire, Massachusetts, Rhode Island, Puerto Rico, and the U.S. Virgin Islands.

Employer’s Failure to Remind Employee When FMLA Leave is About to Expire Does Not Constitute Actionable Interference

In Alexander v. Eye Health Northwest, P.C., No. CV05-1632-HU, 2006 U.S.Dist. LEXIS 72282 (D. Or. Oct. 3, 2006) the court rejected the employee’s argument that her employer’s failure, in light of its knowledge that the employee’s 12 weeks of FMLA leave was set to expire on the day she called to inform the employer that she would return to work in three days, constituted a false or misleading statement that prevented the employee from timely returning to work, thereby interfering with her FMLA right to reinstatement.  The court found that the FMLA does not require an employer to warn an employee when her FMLA leave is about to expire.  Nor does the FMLA prohibit an employer from promulgating a policy that construes a failure to return from leave before the expiration of 12 weeks as a voluntary resignation.  The court went on, however, to find that the employer’s statement (when contacted by Alexander on the last day of FMLA leave and informed that she would return in three days) to contact the employer when she was ready to return to work coupled with the absence of any indication that her job was in jeopardy could cause a reasonable juror to inform that FMLA leave was a negative factor in the decision to terminate her, thereby defeating the employer’s motion for summary judgment.

Comment:  The decision confirms that employers can stand idly by and knowingly allow the 12 weeks of FMLA leave to expire without informing the employee of the expiration date.  However, if an employer makes any representation to the employee on leave that even remotely suggests that the employer will accept or consider the employee’s return from FMLA leave after the expiration of the 12 weeks, the employer’s subsequent decision to terminate the employee before the employee returns to work may constitute actionable interference with the employee’s FMLA rights.  Because of the absence of any FMLA requirement for employers to inform employees of the expiration date of leave, Unions may wish to negotiate for such a requirement to spare employees from losing their job because they inadvertently miscalculated the expiration date of their 12 week FMLA entitlement. 

      

Employer’s Failure to Notify Employee of Expected Return Date Did Not Violate the FMLA

In Garcia v. Crown Services, Inc., No. 04-CV-879, 2006 U.S.Dist. LEXIS 60281 (E.D.Wis. Aug. 15, 2006) the employee alleged that Crown violated the FMLA by not informing her when she was expected to return from FMLA leave.  Garcia unquestionably took 12 weeks of FMLA leave.  The court noted the absence of statutory, regulator, or case law indicating that employers have an affirmative duty to inform employees of the date they are expected to return to work.  The court opined:

If an employer were to misrepresent the employee’s return date in an effort to cause the employee to miss the return date and this use the employee’s failure to return to work as  a pretext for terminating the employee, this sort of conduct may constitute an interference with the employee’s right to reinstatement.  However, that is not what is alleged here.  Garcia simply alleges that Crown had an affirmative duty to inform Garcia of when her leave expired.  Having been provided no legal basis for such an affirmative duty and being unable to locate any such basis itself,, the court concludes that there is no such duty under the FMLA…

Comment:  An employer is required to notify the employee that it has designated leave as FMLA leave.  The FMLA does not require that such notice inform the employee when the employer expects the employee to return from work.  An employer may, however, be required to inform the employee of the expected return date if, for example, such notice is required pursuant to the terms of a collective bargaining agreement or company policy.  Although not required, it is probably a good idea for employer's to inform employees when it expects them to return from FMLA leave, particularly where, as in Garcia, the leave is of an extended duration.   

Three-Day Notice of Unexpected Need for FMLA Leave Timely Under Circumstances

In Snelling v. Stark Properties, Inc., No. 5:05-CV-46 (DF), 2006 U.S. Dist. LEXIS 50272 (M.D.Ga. July 24, 2006) the court found that the employee timely provided notice of the need for FMLA leave three days after the incident giving rise to the need for leave.  The need for leave, triggered as it was by a sudden anxiety attack and a near simultaneous car accident, was unforeseen.  The employee requested FMLA leave three days later.  29 CFR 825.303(a) provides that, where the need for leave is unforeseen, an employee “should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case.”  The DOL regulations go on to provide that “It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.”  Rejecting the employer’s challenge to the timeliness of the request for leave, the court opined: 

The time frame set forth in § 825.303(a)-one to two working days- is precatory only; it does not purport to establish a drop-dead date for providing notice, after which any such notice is fatally defective.  As that provision indicates, timeliness must be considered in light of the “facts and circumstances of the particular case.

The court denied the employer’s motion for summary judgment after finding material issues of fact were in dispute regarding the timing of the notice.

Comment:   The case reminds us that the one to two day employee notice requirement for unforeseen FMLA leave is not written in stone.  Circumstances may permit notice by an employee in excess of one or two days.