The 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 FMLA permits an employer to 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. 

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.   

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.

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.   

Forcing Employee to take FMLA Leave May Be Grounds for Lawsuit

An employee may have an interference claim as a result of being forced to take FMLA leave where the reason for the leave is not covered by the FMLA. 

In Wysong v. Dow Chemical Co., No. 05-4197, 2007 Fed. App. 0402 (6th Cir. Oct. 1, 2007), the employee alleged that DOW violated her rights by forcing her to take 3 days of FMLA leave when she did not need to do so.  Wysong did not believe that her neck pain constituted a "serious health condition" within the coverage of the FMLA. 

The Sixth Circuit recognized an involuntary-leave claim as a type of interference claim.  To state a viable interference claim, an employee must show both that she was not suffering from a "serious health condition" that precluded her from working during the time the employer forced her to take FMLA leave, and that the employee sought FMLA leave at a later date, and such leave was not available because the employee was wrongfully forced to use FMLA leave in the past.  Critically, an involuntary-leave claim ripens only when FMLA leave is exhausted and, as a result, a request for FMLA-qualifying leave is subsequently denied. 

Comment:   The decision illustrates two important points. First, the FMLA permits an employer to force an employee to exhaust FMLA leave.  Second, an employer that forces an employee to exhaust FMLA leave over an employee's objection runs the risk of having that decision challenged in a subsequent suit, at least where the employer denies FMLA leave or disciplines an employee for a subsequent FMLA-covered absence on the grounds that the employee has exhausted their 12-week FMLA leave entitlement and protections.   

Employers must exercise great care to ensure that leave counted against an employee's 12-week FMLA leave entitlement is, in fact, covered by the FMLA.  It is just as illegal to prematurely exhaust an employee's FMLA leave balance for leave that is not covered by the FMLA as it is to deny FMLA leave to an employee where the reason for leave is covered by the FMLA.  To avoid expensive litigation and substantial monetary liability, employers must make the effort to determine that the reason for leave is covered by the FMLA in every instance.  The alternative is to simply give up, grant all leave, and never issue discipline for attendance.  Your call.   

Asking Employee on FMLA Leave to Return to Work Did Not Interefere or "Chill" Employee's Rights

In Whitaker v. Electronic Data Systems Corp., No. 3:05-CV-473-S, 2007 U.S. Dist. LEXIS 48658 (W.D. Ky. July 3, 2007), the employee alleged interference with his FMLA rights based on repeated phone calls from his supervisors during FMLA leave telling him to return to work.  Whitaker alleged that the calls discouraged him from using FMLA leave, which is prohibited by 29 CFR 825.220(b).  The court disagreed.  According to the court:

Merely asking someone to return to work, however, does not amount to discouragement from taking leave.  In order for Defendants to have discouraged Whitaker from taking FMLA leave, they must have provided a "power disincentive for taking FMLA leave."  Coleman v. Blue Cross Blue Shield of Kan., No. 05-4149-JAR, 2007 WL 218903, at *2 (10th Cir. April 15, 1999). 

As an example of a "power disincentive,"the court cited another case wherein the employer made repeated calls to the employee on FMLA leave culminating in a threat of termination if the employee did not return to work.

Here, in contrast, the court noted that the Defendants did not suggest any type of consequence if Whitaker refused to return to work.  In fact, Whitaker did not claim he refused to return to work and actually admitted that, while on FMLA leave, he requested to return to work as soon as possible.  Whitaker, the court concluded, was denied nothing. 

Comment:  The decision raises the bar on what is required to establish an interference claim based on employer actions that allegedly "chill" or discourage an employee from taking FMLA leave. Some courts will want to see fairly explicit evidence of a threat for an employee's exercise of FMLA rights.  Other courts have set a relatively low standard, at least for purposes of summary judgment (where all inferences are drawn in favor of the non-moving party-usually the employee).  For these courts, repeated calls during leave with instructions to return to work while, as in Whitaker, an employee is on an attendance control plan with the very real prospect of discipline for attendance violations, would likely tip the balance in favor of a finding of interference that discourages an employee for exercising their right to FMLA leave.   

Counseling Employee for Excessive Sick Leave Did Not Interfere with Employee's FMLA Rights

In Wilde v. City of Lincoln, No. 4:05CV3293, 2007 U.S. Dist. LEXIS (D. Neb. March 27, 2007), the employee alleged that the City interfered with his FMLA rights by counseling him for using sick leave in excess of what was permitted by the collective bargaining agreement.  Wilde argued that because he used the sick leave in conjunction with FMLA the counseling discouraged him from using FMLA which interfered with his FMLA rights.  The Court disagreed. 

The Court held that, even assuming that he used sick leave to care for family members with serious health condition, the City did not interfere with his FMLA rights by counseling him.  Wilde's sick leave requests periodically exceeded the amount of leave available to him under collective bargaining agreement.  He was, however, never denied sick leave.  The City, the Court concluded, had the right to counsel Wilde to avid using sick leave at a rate exceeding that permitted under his union agreement.

Comment:  An employee may use paid leave in conjunction with FMLA leave.  An employer may, however, continue to enforce existing company policies regarding the use of paid leave.  If an employer would counsel an employee for exceeding the amount of sick leave they have available in the absence of FMLA leave, the employer may counsel an employee who takes sick leave in conjunction with FMLA leave for exceeding the amount of sick leave available.  The use of FMLA leave does not insulate the employee from the normal rules governing paid leave.  On the other hand, employers must be careful to not treat employees who take FMLA disparately compared to employees who have not taken FMLA leave.  For example, if the employer has never counseled an employee for exceeding the amount of sick leave available but counsels an employee who took FMLA, the employer may violate the anti-discrimination provisions of the FMLA.    

Delay in Processing FMLA Leave Request Interfered with FMLA Even Though Employee Was Never Denied Leave During the Interim and Was Ultimately Granted FMLA Leave

An employer's failure to provide the forms required by the company to request FMLA leave for several months despite repeated requests by the employee interfered with the employee's FMLA rights by discouraging the employee from taking FMLA leave, even though the employee was allowed to take leave while she waited for the forms and was ultimately granted FMLA leave.   

Decision to Terminate Employee Does Not Negate The Employee's Right to FMLA Leave

An employee's right to take FMLA leave does not end when an employer decides to terminate the empoyee's employment, rather than when an employer actually terminates the employee. 

In Norton v. City of San Antionio, No. SA-05-CV-1186 FB, 2007 U.S. Dist. LEXIS 19443 (W.D.Tex. March 19, 2007) the employer argued that Norton could not establish her interference claim because she could not establish that she was entilted to leave under the FMLA.  The City argued that Norton could not prove that she was entitled to FMLA leave because the City had already decided to terminate her employment a few days before she requested FMLA leave.  The City decided to terminate Norton on July 1, and Norton did not request FMLA leave until July 11--the day that the City notified Norton that she was terminated.  The Court disagreed with the City's reasoning.

The Court found that an eligible employee retains the right to take FMLA leave until the employee is actually terminated.  An eligible employee does not lose the right to take FMLA leave simply because the employer has decided to terminate the employee, but the termination has not yet been put into effect. 

Comment:  An employer's decision to terminate an employee does not preclude the employee from exercising FMLA rights until the termination becomes effective.  The timing of an employee's decision to terminate an employee in relation to the employee's exercise of FMLA rights is, however, important in an FMLA discrimination case.  To establish FMLA discrimination, the employee must prove the employer's intent to violate the FMLA as a consequence of the employee's exercise of FMLA rights, such as by requesting leave.  As a defense, an employer can show that it did not intend to discriminate against the employee because the decision to take the adverse action (for a legitimate, non-discriinatory purpose) was made before the employee had requested FMLA leave.      

 

After-Acquired Evidence Demonstrating Employee Could Not Perform Essential Job Functions Prior to Termination Precluded Employee's FMLA Interfence Claim

In Counsell v. Nystrom & Associates, Ltd, No. 05-2315 (PSJ/JJG), 2007 U.S. Dist. LEXIS 10759 (D.Minn. Feb. 13, 2007), the court awarded summary judgment to the employer dismissing the employee's FMLA interference claim based on after-acquired evidence establishing that, at the time she requested FMLA leave the employee was not otherwise able to perform the essential functions of her job (apart from the inability to work a full-time schedule) and, therefore, was not entitled to FMLA leave on an intermittent or reduced leave schedule. 

Denise Counsell worked as psychiatric physician assistant for Nystrom, a provider of psychological and psychiatric counseling services.  In her position, Nystrom must be licensed by the state medical board.  Counsell suffered from several medical conditions for which she received extensive treatments. She was also frequently hospitalized.  Her frequent, unexpected absences required patient appointments to be rescheduled, which was disruptive to the patients and her employer.   

After a ten-day hospitalization in January 2004, Nystrom advised Counsell that she was eligible for FMLA leave.  Nystrom asked Counsell to provide medical certification, which she did.  Nystrom then  approved her for 60 consecutive days of FMLA leave, which Counsell refused saying that she needed to take FMLA leave intermittently.  Nystrom also required Counsell to provide 24 hours notice before taking leave, which Counsel also refused to agree to because sometimes she did not know 24 hours in advance whether she would need leave.  Nystrom withdrew the offer of 60 days of FMLA leave and provided some substitute guidelines Counsell was required to follow to request leave.  After several more months of calling in sick, absences, and missed appointments, Nystrom terminated Counsell's employment for her failure to follow the requirements for providing advanced notice of her absences.  After it terminated her, Nystrom contacted the Minnesota Board of Medical Practice to report Counsel's unprofessional conduct in causing hundreds of patient appointments to be rescheduled.  Counsell sued alleging that her termination and denial of intermittent FMLA leave interfered with her FMLA rights. 

Subsequently, Counsell submitted to a comprehensive mental, physical and chemical dependence evaluation in connection with the Medical Board's investigation of Nystrom's complaint. The evaluators diagnosed Counsell with Munchhausen's syndrome (an affliction wherein individuals deliberately cause themselves to be ill or lie about being ill in order to get care and attention), borderline personality disorder, and opioid and sedative dependence.  Two years after Nystrom fired her, the Medical Board suspended Counsell's license to practice as a physician's assistant indefinitely, concluding that she was unfit to practice as a physician's assistance. 

Nystrom was unaware of the extent of Counsell's afflictions until it received over 4000 pages of her medical records during the discovery phase of the FMLA lawsuit.  In addition to the conclusions of the Medical Board, Nystrom's learned that other health care professionals had reported Counsell to the Board as well.  Nystrom's obtained copies of the reports, several of which came from Counsell's own medical providers, expressing concern that she was unfit to hold a physician assistant license.  Some of Counsell's treating physicians suggested that she was addicted to opiate drugs, engaged in drug-seeking behavior, and suffered from Munchhausen's syndrome.  Her treating physicians suspected that many of Counsell's medical problems were feigned, self-induced, or purposefully exacerbated. 

Nystrom hired a medical expert who reviewed Counsell's medical records and concluded that she was unfit to be practicing as a physician's assistant while she was employed by Nystrom.  The expert concluded that Counsell suffered from Munchhausen syndrome, borderline personality disorder, and drug dependence during 2004, when she was working for Nystrom.   The expert also concluded that Counsell had engaged in a pattern of deceptive behavior at Nystrom's that concealed her psychological problems from her coworkers. 

Nystrom moved for dismissal of Counsell's FMLA claim arguing that she was not entitled to FMLA leave, intermittent or otherwise, because she was not otherwise able to perform the essential functions of her job except for the need to take FMLA leave.  The Court agreed.

Nystrom, the court found, established through expert testimony based on Counsell's medial record that Counsell suffers from Munchhausen's syndrome, borderline personality disorder, and opioid dependence during the time she was employed by Nystrom.  Expert testimony established that Counsell posed an unacceptable risk of harm to her patients  and that, as a result of her drug additions, Counsell was not qualified to practice as a registered physician under state law.  The fact that she was successful in hiding her mental illness from the psychiatrist with whom she worked, the Court concluded, did not make her any less unfit.  The Court found that Counsell did not submit evidence, expert or otherwise, that she did not suffer the mental illnesses identified by Nystrom.

The Court rejected Counsell's argument that Nystrom should not be precluded from matining her FMLA interference claim based on after-acquired evidence.  The Court distinguished the decision of the Supreme Court in McKennon v. Nashville Banner Publishing Co, 513 U.S. 352 (1995).  In that case, the Supreme Court held that after-acquired evidence of an independent reason to terminate the employee did did not bar a plaintiff from pursuing their age claim where the employer admitted that the original termination violated the Age Discrimination in Employment Act.  Nystom, the Court noted, did not admit to discriminating against Counsell.

Moreover, the Court noted that an interference claim, unlike a discrimination claim, does not require bad intent.  Rather, the only relevant question in an FMLA interference case is whether Nystrom, for good reason, bad reason, or no reason, failed to give Counsell the leave to which she was entitled.  To determine whether Counsell was entitled to intermittent leave under the FMLA, the Court must first determine whether Counsell was capable of performing the essential functions of her job.  "There is no reason, in law or logic, why the Court should not be able to consider "after-acquired" evidence on the question of whether Counsell was able to perform the essential functions of her job. 

The Court observed:

When considering an interference claim, a court must bear in mind that the FMLA does not provide leave for leave's sake.  If the employee is unqualified for the position and thus not entitled to FMLA leave, there is no important congressional policy to vindicate in an interference case. (ciations omitted)

The Court concluded that "Nystrom's after-acquired evidence of Counsell's full medical records, and the opinions of Nystrom's expert draws on the basis of those record, properly bar Counsell's FMLA claim.

Comment:  The decision opens the door for employer's to use evidence acquired well after the denial of leave to establish that an employee who asked for and was initially approved FMLA leave was nevertheless not entilted to that leave because they were not able to perform the essential functions of their job (other than regular attendance while on FMLA leave).  The consideration of after-acquired evidence in Counsell undoubtedly saved the day for the employer who otherwise appears to have violated the FMLA. 

 

Employer Interfered with Employee's FMLA Rights by Assessing Absenteeism Points Against Employee Granted FMLA Leave

In Fisher v. Pohlman, Inc., No. 4:06CV01761 AGF, 2007 U.S. Dist. LEXIS 4725 (E.D.Mo. Jan. 23, 2007), the Court denied the employer's motion to dismiss plaintiff's FMLA interference claim.  Cheryl Fisher worked for Pohlman as a Certified Mechanical Inspector from 1992 until her termination on September 17, 2004.  In February 2003, Fisher asked for and was granted intermittent FMLA leave to care for her spouse with a serious health condition.  Pohlman had a leave policy that assessed points for missed work and provided that an employee who accumulated 9 points was automatically fired.  In 2003 and 2004 Fisher alleged that Pohlman assessed points to her for leave that was FMLA leave.  Her attempts to have these points removed from her record were rebuffed.  After an attempt to discuss the matter with the Director of Human Resources she was fired.

Pohlman moved to dismiss alleging that Fisher's interference claim filed because she did not assert that FMLA leave was denied.  The court disagreed.

The Court found that Fisher's allegations, if proven, were sufficient to make out an FMLA interference claim.  According to the court, "interference" includes not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.  The Court found that assessing absenteeism points and terminating an employee for use of FMLA leave could be construed to deter an employee from exercising her rights under the FMLA. 

Comment:  The FMLA's anti-interference provisions protect more than an employer's denial of FMLA leave.  It also protects employees from adverse employment actions that may deter an employee from using FMLA leave.  The Court determined that the assessment of absenteeism points that could (and in fact did) lead to discipline or removal arguably may deter an employee from exercising FMLA rights. 

Encouraging Employee to Pursue Options Other Than FMLA Leave Constituted Interference that "Chilled Employee's FMLA Rights Even Though Employee Took Leave

In Grosso v. Federal Express Corp., No 05-6128, 2006 U.S. Dist. LEXIS 91604 (E.D.Pa. Dec. 19, 2006), the court addressed whether an employee may bring a claim of FMLA interference for actions that could chill the employee's desire to take FMLA leave, even where the employee takes the leave.  The Court concluded that the FMLA permitted such a claim, and that Grosso had established sufficient facts to support his interference claim to preclude awarding summary judgment to the employer.

Grosso worked as a driver for Federal Express.  He alleged that Federal Express interfered with his rights under the FMLA by discouraging him from taking FMLA leave to periodically care for his father, who suffered from a heart condition and Alzheimer's.  He was not denied FMLA leave. 

Plaintiff claimed that management told him that he was taking too much FMLA leave and that he needed to come back to work; that it was not fair to plaintiff's co-workers that plaintiff took FMLA leave whenever he had leave available; and that plaintiff should put his father in a nursing home or obtain nursing care at home.  Additionally, Federal Express required plaintiff to sign a "day of decision letter" in which he agreed to make arrangements as soon as he could to accommodate the needs of his father and that he will work to get home care nursing so that he did not have to take time off whenever possible. 

The Court initially concluded, based on a review of the case law, that an employee could maintain a claim of interference even though the employee took FMLA leave based on the actions of an employer that chilled the employee's desire to exercise their right to take FMLA leave.  The Court went on to find that Grosso had produced sufficient evidence that suggested that Federal Express had taken actions to discourage Grosso's use of FMLA leave sufficient to preclude summary judgment for the employer.  The Court cited the language of the day of decision letter and alleged statements as evidence that Federal Express discouraged Grosso from taking FMLA leave by encouraging him to pursue other options, such as placing his father in a nursing home or obtaining in-home nursing care.

Comment:  At minimum, employers who want to avoid the double whammy of both granting FMLA leave and being sued for substantial monetary liability for interference for "chilling" employee FMLA rights should train their managers and supervisors to keep their adverse opinions about an employee's exercise of those rights to themselves.  Employers should also implement coverage systems that take into account an employee's absence on FMLA leave.  Lower level managers and supervisors get into the kind of trouble that occurred in Grosso because of the absence of a system to alleviate the resulting operational pressures brought to bear on lower level supervisors as a result of an employee's FMLA absence. 

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.