Iowa Employer Law Blog: Insights on Recent Developments in Employment & Labor Law

- Posted by Russell L. Samson

The September 2, 2010, decision of the  Sixth Circuit in Branham v. Gannett Satellite Information Network, Inc. contains several important reminders for employers regarding obligations under the Family and Medical Leave Act.  It is a case worthy of a series of posts.  In Part One, we examine lessons about employer notices and medical certifications. 

After calling in sick for several days in a row, Branham notified her employer that she had seen a doctor.  The employer – probably thinking it was doing the employee a favor by expediting matters – “faxed” the Certification of Health Care Provider directly to her doctor.  No notice of “rights and responsibilities” was given to Branham.   Apparently, the employer did not notify Branham that it had received the certification form from the doctor.  That form was a negative certification, in which the doctor certifies the employee can return to work with no restrictions or limitations.  Branham’s negative certification released her to return to work several days before it was completed by the doctor.  But Branham had not returned, and did not return to work for more than a week after her employer received the negative certification.  Branham was fired for violating the attendance policy by failing to return to work as released.  Branham sued, claiming her employer had violated the FMLA.

The district court granted summary judgment for the employer, dismissing the litigation without a trial.  It did so by focusing on the fact that at the time the employer made the termination decision, the only medical information it had was Branham’s own doctor’s certification that she was able to work without restriction or limitation.  The Sixth Circuit Court of Appeals reversed, sending the case back for trial on a number of different points where it found questions of material fact for a jury to decide. 

One problem, however, was so glaring that the Sixth Circuit held it did not need to be tried and could be immediately decided as a matter of law—that being the employer’s failure to provide Branham with the proper eligibility notice.  29 CFR § 825.300 details the obligations of an employer with regard to notices under the FMLA.  This includes that the employer provide an eligibility notice, and a notice of rights and responsibilities, to the employee when she requests leave that may be FMLA qualifying.  The “rights and responsibilities” notice must be written and include requirements for furnishing a certification of a serious health condition, and consequences for failing to do so. DOL form WH-381 may be used to meet these obligations.  The employer’s failure to provide Branham with an eligibility notice and her  “rights and responsibilities” was a per se violation of the FMLA. 

Although this case arose under the old version of the Department of Labor’s FMLA regulations, many of the regulations applicable to this case did not change in the most recent revisions.  So the lessons are as valid today as under the old regulations, including this lesson on providing eligibility notices.  The difference: Under the old regulations employers were required to provide the notice “within a reasonable time after notice of the need for leave is given by the employee—within one or two business days if feasible,” while under the new regulations an employer has five business days. 

The message in this aspect of the decision is clear for employers:  Get FMLA eligibility notices to employees in a timely manner and comply with details of the regulations regarding the form and content of those notices, including notifying employees of requirements for providing medical certifications and the consequences for failing to do so.

If you have questions regarding employers’ responsibilities under the Family and Medical Leave Act, please contact attorney Russ Samson at 515-246-4548 / rsamson@dickinsonlaw.com or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.