Employer did not give employee chance to cure medical certification; FMLA claim revived

Finding that an employee’s medical certification in support of her request for intermittent FMLA leave was “insufficient,” rather than “negative on its face” as a district court had concluded, the Third Circuit U.S. Court of Appeals ruled that the employer was required by regulations to give the employee notice of the deficiency and an opportunity to cure it rather than simply firing her. It therefore reversed the dismissal of her interference claim, as well as her FMLA retaliation claim.

In March 2013, the employee began experiencing shortness of breath, nausea, and vomiting. Her doctor completed an FMLA request form seeking intermittent leave twice a week “for a probable duration of one month or until about April 1, 2013.” The employee was absent March 13 to 14 and 23 to 25. On March 28, she was fired for those absences. When she brought up her FMLA request, she was informed that her request was denied. Thereafter, she saw for the first time a March 26 letter stating that FMLA leave was denied because her “condition presently [did] not qualify as a serious health condition under the criteria set forth” by the FMLA.

In early April, the employee was diagnosed with diabetes and high blood pressure, which were found to be the cause of her symptoms the prior month. These conditions were chronic and permanent, requiring continuing medical treatment. Filing suit under the FMLA, she claimed the employer interfered with her rights by failing to provide her with seven days to cure any deficiencies in the medical certification and FMLA request form, and by denying her request for leave. The district court concluded that her medical certification was “negative on its face” because it requested only one month of intermittent leave and did not show a chronic serious health condition. It rejected her argument that the certification was simply insufficient and she therefore should have been given seven days to cure under the FMLA. The employee appealed.

Cure period for “insufficient” certification. Reversing, the Third Circuit explained that an employer may require employees who request FMLA leave to provide a certification from a health care provider. A “sufficient” certification must state: (1) the date on which the condition began, (2) the probable duration, (3) relevant medical facts, (4) that the employee is unable to perform the functions of her position, (5) the dates and duration of any planned medical treatment, and (6) the expected duration of intermittent leave.

Under Department of Labor regulations, an employer “shall advise an employee” when it finds a certification incomplete or insufficient, and “shall state in writing what additional information is necessary to make the certification complete and sufficient.” A certification is “insufficient” if the information provided is “vague, ambiguous, or nonresponsive.” If the employer finds the certification incomplete or insufficient, it may deny the request, but only if it “provide[d] the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.”

Certification here was “insufficient,” not “negative on its face.” In this case, the district court found that the employee was not entitled to leave or a cure period because her certification was “invalid” and “negative on its face.” Disagreeing, the appeals court explained that the regulations do not mention a “negative certification,” which is a judicially-crafted concept from other circuit courts referring to certifications stating that an employee can perform his job. Those cases were not applicable here because her medical certification stated that the employee needed intermittent leave. (The court declined to comment on when a certification may be deemed “negative.”)

That said, the Third Circuit found that the employee’s certification was “insufficient” under DOL regulations because it was “vague, ambiguous, or non-responsive.” It stated that she “request[s] intermittent leave at a frequency of two times weekly . . . and lasting for a probable duration of one month.” To the appeals court, that was vague because it failed to specify whether the one month duration referred only to the length of her leave request or to the duration of her condition.

Interference claim revived. Because the employee’s certification was insufficient, the employer was required, upon receiving it, to advise her that it was insufficient, to state in writing what additional information was necessary to make it sufficient, and to provide her an opportunity to cure the deficiency before denying her request for leave. It did none of those things, explained the appeals court, instead firing her without first notifying her that her leave had been denied. The employee could premise her interference claim on those regulatory violations.

The appeals court also found support for her claim based under precedent concerning notice interference, which happens when an employer fails to advise an employee of his or her substantive FMLA rights. Just as employers must advise employees of their FMLA rights, they must also advise of deficiencies in medical certifications before giving employees an opportunity to cure. The court explained that “[t]hese modest burdens imposed on employers help ensure that employees are equipped with at least basic information about the Act’s requirements and have an opportunity to exercise their rights in a meaningful way. And to encourage employer compliance, the regulations provide injured employees with a cause of action for interference.” Here, because the employee alleged that her employer fired her instead of providing notice and opportunity to cure deficiencies in her FMLA certification, she sufficiently stated an interference claim and dismissal was reversed.

Retaliation claim. The district court dismissed the employee’s FMLA retaliation claim based on its finding that she did not make a “valid” request for leave. Because the appeals court disagreed with the underpinnings of that conclusion (i.e., that her certification was negative and she was not entitled to benefits), it also held that the retaliation claim should not have been dismissed.

SOURCE: Hansler v. Lehigh Valley Hospital Network, (CA-3), No. 14-1772, June 22, 2015.

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