Requirement of Physician Certification for FMLA Leave Must be Properly Communicated to Employee

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Requirement of Physician Certification for FMLA Leave Must be Properly Communicated to Employee

The Family and Medical Leave Act (FMLA) does not require that every employee requesting leave to provide a physician certification confirming the existence of a serious health condition. However, the FMLA does allow an employer to "require" that a request for FMLA leave "be supported by a certification issued by the [employee's] health care provider." The FMLA also requires an employee to deliver a properly requested physician certification "in a timely manner." Importantly, a 15-day period required by an employer to provide a certification begins (if at all) on the date the employer properly requests the certification, not on the date that the employee seeks or begins leave. An employee's duty to provide a physician certification is not "triggered" unless and until an employer makes a "proper request" for the certification. However, an employer may fire an employee who fails to meet the 15-day deadline.

A case handed down last week by a Michigan Federal Court illustrates the rule. Marianne Barker, an employee of Genesys PHO, was bitten on the hand by a dog in July 2011. She told Genesys that she had very serious medical complications that prevented her from coming to work, she did not report for her scheduled shifts between July 6 and July 21.

Barker spoke with her supervisor and was reminded of the importance of providing medical substantiation. She explained that her return day was pushed back because of the complications and asked for guidance as to how her physician should complete the certification. Although the doctor completed the certification form, Barker was too ill to retrieve it and submit the form to Genesys. Barker was unable to work on her scheduled return date because she suffered from complications due to her medications. She called in more than an hour after the start of her shift, rather than prior to the start of the shift.

Two days after she failed to return to work and after more than a three-week absence, Barker was terminated for failing to submit certification. According to Genesys, its policy of a 15-day period in which to supply the requisite physician certification began to run on the first day of her absence. After Barker received the termination letter, she obtained the completed certification from her physician and submitted it to Genesys, requesting reinstatement. The completed certification did not cover the full period that Barker was absent, but she told Genesys that she would have her physician update the form. Nonetheless, Genesys rebuffed Barker and refused to reconsider her termination. Barker sued.

Genesys filed a motion to have the suit thrown out, insisting that Barker had filed to provide the required certification within a 15 day period, and thus was not protected by the FMLA. The court didn't buy it. It ruled that he 15-day period to provide a certification begins (if at all) on the date the employer properly requests the certification, not on the date that the employee seeks or begins leave. An employee's duty to provide a physician certification is not "triggered" unless and until an employer makes a "proper request" for the certification. A material factual dispute remained as to whether a proper request was made and, if so, whether it was practicable for the employee to respond within 15 days, and thus the court refused to dismiss the case. In addition, Genesys' communications with Barker were oral, and no written request was ever made. Finally, the court pointed out that the supervisor's request would have started the clock only if the supervisor also informed the employee of the consequences of failing to submit a certification on time. There was no definitive evidence in the record that the supervisor so informed the employee of those consequences during the conversation.

The takeaway: If you are requesting FMLA leave, the law does not require a written physician certification, but it does allow an employer to require such a certification. Be sure to comply with your employer's policies, but if your employer does not properly adhere to its own policies by not requesting a certification and then fires you, it has violated the FMLA rules.

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