The Federal Sector FMLA Blog

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 KnoxFMLA 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 as part of offering the employee the opportunity to apply for FMLA leave.                     

FMLA Not Vioalted by Employee Misunderstanding of Leave Rights

An employee who remains out of work beyond 12 weeks based on a misunderstanding regarding the amount of FMLA leave available does not have a viable FMLA claim against his or her employer for disciplinary action regarding the excess unexcused absences.

In Edwards v. Heathcraft, Inc. No. 7:05-cv-36 (HL), 2008 U.S. Dist. LEXIS 11596 (M.D. Ga. Feb. 15, 2008), the employee took maternity leave when she became medically unable to perform the lifting functions of her job while pregnant.  The supporting medical certification indicated that Edwards would need leave from April 16 to November 16.  The certification also indicated the probable duration of her condition to December 6, 2004. 

Based on the medical certification, Edwards believed that she had until December 5 to return to work.  Heathcraft properly designated 12 weeks of her leave as FMLA and so informed the employee.  After the expiration of 12 weeks of FMLA leave but before December 6, Edwards ignored Heathcraft's repeated requests to return to work or face discipline for unexcused absences.  Heathcraft terminated Edwards for fifteen unexcused absences.

According to the court, Edwards' right to job-protected FMLA leave expired 12 weeks after her leave began.  Heathcraft, the court found, had done everything it was required to do under the FMLA.  When Edwards failed to return to work thereafter, Heathcraft had no FMLA obligations to fulfill.  The cited absences were not protected by the FMLA and, therefore, could legitimately be the basis for disciplinary action. 

Comment:  All too often employees exceed their 12 weeks of job-protected FMLA leave because they are not aware of exactly how much FMLA leave they have available.  Currently, the employer notice provisions of the FMLA, 825.208(b)(1), only require an employer to notify the employee that leave has been designated and will be counted as FMLA leave.  The current regulations do not specifically require employers to provide employees with information detailing the amount of leave so designated.

Recognizing the problem, the DOL has proposed revising the notice provisions by adding the requirement (825.300(c)(1)) that employers tell employees the number of hours, days or weeks of leave that have been designated.  Where the exact amount of FMLA leave may be unknown, the proposed regulations require employers to notify employees every 30 days of the amount of leave that has been designated as FMLA-qualifying.  The above information is designed to avoid situations like Edwards where an employee mistakenly exceeds their 12 weeks of FMLA leave due to a lack of information.

The OPM FMLA regulations for civil service employees require agencies to confirm beforehand that the employee wants the leave to be covered by the FMLA.  Depending on how this is implemented, this might provide the employee with adequate information regarding the amount of FMLA leave the employee has available to use at any given time.  Of course, like the DOL, the OPM might consider modifying its employer notice provisions to make this crystal clear.   

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.

The decision is applicable to all non-civil service (Postal, Congressional, & Non-Postal) employees.  It is not, however, applicable to civil service employees covered by Title II. Title II does not require that an employer provide specific notice that medical certification is required for FMLA leave.  Indeed, under Title II, the employer would likely be found to have provided adequate notice of the medical certification requirement by incorporating the requirement into a handbook or manual.  This is because Title II's employer FMLA notice requirements are much less specific than are those covering non-civil service employees. 

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 the 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 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:  The decision is applicable to employees covered by Title I and the CAA.  Title II does not have a comparable provision requiring federal employers to provide employees with specific notice of FMLA rights and obligations.  Title II does, however, contain a general requirement that federal employers inform employees of the FMLA rights and obligations.  The PEOAA does not include employer FMLA notice provisions.  Labor unions and other organizations representing the interests of employees should consider securing the empoyer's agreement to notify employees that leave ceases on the death of the family member who the employee was caring for.  FMLA notice requirements are addressed in Chapter 8 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supp.).

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 (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.

Employees Employed Outside of the United States Not Eligble for FMLA Leave

In Freeman v. Sikorsky Aircraft Corp., No. 04-CV-0506-CVE-SAJ, 2006 U.S. Dist. LEXIS 58362 (N.D.Ok. Aug. 17, 2006), the employee accepted a job in September 1999 as Base Manager of the defendants' site in Brazil.  As part of his job he would occasionally return to the United States for meetings. On January 4, 2004, Freeman left Brazil and flew to Tulsa, Oklahoma without notice to his employer.  There, he was diagnosed as suffering from a major depressive disorder and panic disorder.  On January 9, his physician contacted the defendant and requested medical leave for plaintiff.  He was granted FMLA leave and his payroll status was changed to "domestic" because he was now living in the United States.  He was not informed at the time that he was not eligible for FMLA leave.  The company subsequently terminated Freeman allegedly because he failed to reconcile missing company funds and property.  Freeman sued alleging that he was terminated in retaliation for having taken FMLA leave. The court found otherwise.  Freeman, the court found, was not eligible for FMLA leave.  At the time his leave commenced he was employed in Brazil.  Employees who are "employed in any country other than the United States or Territory or possession of the United States" are not "eligible employees' for the purposes of the FMLA.  29 CFR 825.800.  The court rejected the argument that his worksite was in the United States based on occasional business at the defendant's headquarters.

Comment:  The exclusion of employees employed outside of the United States is unique to Title I of the FMLA.  Neither Title II, the CAA or PEOAA place a similar geographic exclusion on FMLA eligibility.  A federal agency with overseas employees composed of a mixture of civil service (covered by Title II) and non-civil service (covered by Title I) would have different FMLA obligations to employees who may be working side-by-side with eachother.

Note that the Freeman court did not address the affect of the employer's failure to notify Freeman that he was not eligible for FMLA leave.  By operation of 29 CFR 825.110(d), the employer's failure to notify Freeman that he was not eligible for FMLA leave should have resulted in him being deemed eligible.  The decision fails to address this issue at all.  Many courts have found this provision to be Constitutionally invalid because it grants eligibility status to those who do not meet the eligibility requirements set by Congress as a penalty for an employer's failure to abide by the DOL notice requirements.  The CAA contains a penalty provision similar to 29 CFR 825.110(d).  Title II does not have any eligibility requirements and, therefore, does not impose a penalty for a federal employer's failure to notify employees if they are eligible for leave.

Training Employees on FMLA Entitlements is Not Required by Title II of the FMLA, FLRA Finds

In Am. Federation of Government Employees Local 1612, Council of Prison Locals and United States Dept. of Justice, Federal Bureau of Prisons, United States Medical Center for Federal Prisoners, 61 FLRA No. 93 (Feb. 9, 2006) the Union filed exceptions to the adverse decision of an arbitrator denying a grievance contesting a 7-day suspension for being AWOL for approximately two weeks.  The Union argued that the decision of the arbitrator was contrary to law because the agency failed to inform the grievant of his rights under the FMLA, as required by the OPM implementing regulations.  The Union argued that this duty required the Agency to provide FMLA training to employees.  Had the grievant been so informed, the Union argued that the employee would have perfected his right to FMLA leave for the absence at issue.  The FLRA disagreed.  The FLRA found that the arbitrator’s award was not contrary to law.  The FLRA agreed that the OPM regulations require agencies to inform employees of their FMLA entitlements and obligations.  The FLRA further found, however, that the OPM regulations provide that, to meet this requirement, “agencies may wish to provide employee’s access to the FMLA and OPM’s implementing regulations or agency policies or guidance on implementing the FMLA.”  The FLRA found that information on the types of leave available to employees, including FMLA leave, was available to employees.  Information on FMLA leave was included on the leave form “which provides information concerning the type of leave used and a listing of reasons for invoking the FMLA.” 

Comment:  Note that the agency apparently did not provide employee’s with access to the FMLA or OPM implementing regulations as required by Title II.  Presumably, the FLRA’s decision rests on the second permissible means of notice, “agency policies or guidance on implementing the FMLA.”  If that is the case, it would appear that the FLRA has set the bar very low on what FMLA information an agency needs to provide to meet that standard.  While the decision is less than clear on the amount of FMLA information it provided on the leave request form, it would seem a safe bet that such information was significantly less than giving an employee access to the OPM FMLA regulations. 

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.

FMLA Supersedes Board Doctrine Permitting New Evidence of Incapacitation on Appeal

In Dias v. Dept. of Veterans Affairs, 2006 MSPB 124 (May 11, 2006), the Board held that the FMLA right of an agency to require an employee to provide medical documentation “in a timely manner” supersedes the long-held Board doctrine permitting an employee to defend against a leave-related adverse action by presenting, on appeal, evidence of incapacitation for duty that was never submitted to the agency prior to the adverse action.  The FMLA contains its own mechanism for resolving a dispute regarding the sufficiency of medical evidence submitted in support of a leave request.   The Board is not part of this dispute-resolution mechanism devised by Congress, which is intended to achieve a “final” and “binding” determination on the employee’s need for FMLA leave.  The Board continued:

Simply put, the Board cannot allow an employee to bypass this scheme by ignoring the agency’s request for medical evidence under 5 U.S.C. 6383 and then attempting to present evidence to support the leave request for the first time in a Board appeal.

The Board went on to find that, if an employee is not on notice that she is required to submit evidence to the agency to support an FMLA leave request, it may be appropriate for the Board to consider evidence submitted for the first time on appeal.  Similarly, if the employee made some effort to support her request for LWOP with documentation and the agency found her documentation to be inadequate but did not provide guidance regarding what precisely it would deem adequate documentation, such lack of guidance could provide a basis for considering the employee’s evidence that was submitted for the first time on appeal.  The Board found that none of these exceptions applied because the agency had properly and repeatedly notified the employee of the requirement to submit medical certification to substantiate her need for FMLA leave.  As such the Board rejected the employee’s evidence of her own health condition and that of her parents that was submitted for the first time on appeal.  Absent such evidence, the Board sustained the AWOL charge.

Comment:  The decision points out the minimalist agency notice requirements of the OPM implementing regulations.  Title II does not specifically require an agency to notify an employee that the employee will be required to timely submit medical certification confirming the need for FMLA leave.  Rather, the OPM regulations broadly require agencies to inform its employees of their entitlements and obligations by providing access to Title II of the FMLA and the OPM implementing regulations. It is not clear that such access would meet the Board’s notice standard to preclude new evidence of incapacitation from being introduced for the first time on appeal.  Note that the Board in Dias approved of the agency’s notice by written letter directly to the employee.  It also favorably approved of notice through the employee’s union representative, although it is unclear whether this notice was oral or in writing.  Similarly, OPM’s FMLA regulations do not require agencies to notify employees when the certification is incomplete.  Agencies wishing to avoid the consideration of new evidence of incapacitation at a Board hearing must timely notify the employees of any certification deficiencies and provide them with a reasonable opportunity to cure those problems.  The Board appears to be imposing agency medical certification notice requirements that are very similar to those that apply under Title I of the FMLA.