The FMLA Blog

Third Circuit Sustains Employee's Removal for Lying About Reason for Absences

John Prigge told Sears, his employer, that he was absent for two days to receive radiation treatment for prostate cancer.  In reality, Prigge suffered from bipolar disorder, which had been diagnosed several years earlier.  Prigge was subsequenlty absent for seven days during which he was admitted to a medical clinic suffering from depression.  On this occasion, Prigge advised Sears that his absence was due to incapacity and treatment for bipolar disorder.  He also confessed that his prior absence was not due to prostate cancer, but to bipolar disorder. 

Sears demanded that Prigge provide medical documentation substantiating his need for leave due to prostate cancer and bipolar disorder.  Prigge provided medical documentation substantiating his need for leave due to bipolar disorder.  He provided medical certification verifying that he did not suffer from prostate cancer.  Sears fired for failure to substantiate his need for leave with medical documentation due to prostate cancer, and for lying about his need for prostate cancer. 

 The Third Circuit agreed with Sears.  It found, essentially, that Sears had the right to terminate Prigge for lying about his need for leave, and because he failed to substantiate that need with supporting medical documentation. 

Comment:  However awkward or embarrassing, employees need to tell their employers the real reason for their need for FMLA leave.  Courts have not allowed employees to tell their employer a false reason for the need for leave.  In addition to being truthful, had Prigge told Sears the real reason for the prior leave it would have likely been covered by the FMLA.  Courts have not excused employees from telling their employer the real reason for their need leave out of embarrassment or fear that the reason will be fodder for office gossip.  Nor have they looked past the false reason to find FMLA coverage based on the real reason for the leave.  Courts have consistently found that employers are entitled to the real reason animating the need for leave. 

 Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

No FMLA Protections Based on Incomplete Medical Certification

Janet Lewis was employed as a civilian in the Air Force as Director of a the Elmendorf Air Force Base Child Development Center.  She requested 120 days of FMLA leave due to her own serious health condition. The Agency required Lewis to support her request for leave with the WH-380 medical certification form.  Lewis had her doctor fill out the form, which she submitted in support of her leave request. At the same time, she submitted a prescription from her doctor, and a 2006 letter from another doctor.  Kathleen DeShasier, Lewis's supervisor, told her the documents she submitted were insufficient to support her request for FMLA leave.  Lewis refused to submit more information, believing that she had provided all the information necessary under the FMLA.  When she failed to show up for work, the Agency fired her AWOL.  She appealed her removal through the administrative and federal district court, without success. 

Before the Ninth Circuit, Lewis argued that the documents she submitted provided sufficient medical facts to support the conclusion that she suffered from an FMLA-covered serious health condition. The Ninth Circuit disagreed.  Lewis's WH-380, the court observed, "states only that she was diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescriptions medications, and 120 days off work." 

Significantly, the Court found that the WH-380 form was incomplete because it failed to-

• provide a summary of the medical facts that support the diagnosis;
• contain an explanation as to why Lewis was unable to perform her work duties; and
• address what additional treatments would be required for her condition.

The   rejected Lewis's alternative argument that she submitted adequate medical documentation to the HR department in support of her workers'compensation claim.  Along with her OWCP claim, Lewis did, the Court found, submit medical documents and a detailed diagnosis.  However, Lewis did not deliver the OWCP documents to her supervisor. Instead, she specifically requested that the HR department keep her medical records confidential and out of her supervisor's hands.  In so doing, the Court essentially found that Lewis could not rely on her OWCP documents as a way to supplement her incomplete WH-380.

Comment:  To substantiate an employee's request for serious health condition FMLA leave, an employer may require the employee to submit a complete medical certification.  The permissible content of that certification is governed by federal regulations.  To determine whether the leave is covered by the FMLA, an employer may not require an employee to provide more medical information than is permitted by law.  While an employer may voluntarily agree to accept a medical certification with less medical information than permitted  (employers are not mandated to require any medical certification), they are perfectly within their rights to insist that they receive a complete medical certification. 

Some employee's are very reluctant to disclose their medical condition to their supervisor or employer when requesting leave.  They fear that their highly confidential medical information will "get out" and become fodder for the office rumor mill.  These employees tend to offer sparce medical certifications.  These certifications may even have something written in every area of the WH-380 form, but the information provided is either incomplete or useless.  When offered the chance to submit additional information, these employees, like Lewis, often refuse.   

Employees who refuse to provide additional information run the considerable risk of losing FMLA protections.  As with Lewis, employees who forge ahead and take the leave anyway in the belief that they did provide a complete medical certification, and that the employer is wrong, run the considerable risk of being disciplined for AWOL.  Before risking your job, employees better be certain that they are right and their employer is wrong on this issue.  Check with your union, the US US Department of Labor, or an attorney. 

Note that the Court rejected Lewis's argument that she satisfied her FMLA medical certification by providing additional medical information to the HR department as part of the OWCP claim. While the Court did not spell it out, the implication is that she was required to submit her FMLA request to her supervisor, not the HR department.  Moreover, she specifically asked that her OWCP medical documents be kept confidential including from her supervisor. 

Providing medical information, but not to the right person or office, is another (failed) tactic frequently used by employees who don't want to disclose information to their supervisor even though that is what may be required by the employer's policy.  For example, as in Lewis, employees will send their medical documentation to a medical or OWCP unit with confidentiality restrictions, and then claim that they satisfied the FMLA because they provided the certification to their employer writ large.   

Where the employer has a policy or practice requiring the employee to request leave and provide supporting medical certification through the immediate supervisor or a specified office, providing the medical documentation to some other unit of the employer will not secure the protections of the FMLA.  Courts have not allowed employees to game the system by providing supporting medical documentation to someone within the company, but outside of the policy or practice.   

Lewis v. USA, No. 10-35624 (9th Cir. May 26, 2011), http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf

      

 

 

 

 

Policy Limits on Vacation Travel During FMLA Leave Upheld

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegron filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgement to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Comment: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.     

Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf