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

- Posted by Russell L. Samson

Earlier posts on the September 2, 2010 decision of the United States Court of Appeals for the Sixth Circuit in Branham v. Gannett Satellite Information Network, Inc., No 09-6149 discussed the importance of complying with the various initial “notice” provisions of the FMLA, especially as related to “Certifications of Health Care Providers” and the written notice of “rights and responsibilities,” along with the requirement for a written “designation notice” (or a written notice of deficiency if the Certificate as received is either “incomplete” or “insufficient”).

In Branham – which arose prior to the promulgation of the current FMLA regulations – the employer failed to comply with the “rights and responsibilities” notice provision of the FMLA regarding the need to provide medical certification, and faxed a Certification of Health Care Provider directly to the health care provider identified by the employee.  The health care provider faxed the completed form directly back to the employer.  In that document, the doctor certified the employee was able to return to work with no restrictions or limitations on a date several days prior to the date the doctor actually completed and returned the Certification.  When the employee failed to return as apparently authorized, the employer fired her.  On the day the termination letter was mailed, the individual spoke on the phone with someone at her place of employment and learned of the termination decision.

Upon learning that she was being terminated, the employee returned – the same day – to the clinic where the doctor had provided the “negative certification,”  and was seen by a nurse practitioner.  Later that same day, at some point after 6:00 p.m., the employer received a faxed “Certification of Health Care Provider” completed by the nurse practitioner.  In that document, the nurse practitioner “certified” that the individual’s illness had begun some six and one-half months prior to the date of the certification (during which period the individual had in fact worked), and that her illness was expected to prevent the individual from working for at least another month and a half. 

The Sixth Circuit noted that the second certification (the nurse practitioner’s), was completed and received by the employer within 15 calendar days of the date the employer had sent the first Certification form to the health care provider identified by the employee.

We earlier discussed the fact that the employer had failed to comply with the “rights and responsibilities” notice requirement of 29 CFR § 825.305(b), as well as the requirement for a “designation” notice under 29 CFR § 825.305(d).  We also alluded in an earlier post to the fact that a “game player” employee or health care provider – under current regulations – can drag out the process of making an FMLA determination by providing an “incomplete” or “insufficient” Certification.  If that happens, the individual must be given at least seven calendar days to cure the deficiency. 

So when can an employer terminate its employment relationship with an employee who fails to report to work?  There is no ready answer, and a number of considerations must be taken into account when making such a decision. 

An employer must consider its general attendance policy, as well as other laws like the ADA and FMLA, in making a decision.  The FMLA provides a “job protected” leave of absence.  The fact that an absence is not FMLA-qualifying does not, however, determine whether the individual may be entitled to a “general” leave of absence.  If an employer has evidence that an absence is not “FMLA-qualifying,” it still must consider what its attendance policy provides and what its responses have been with regard to other individuals’ patterns of non-attendance.

If an employee provides a “complete” and “sufficient” negative Certification (i.e., the health care provider certifies the employee does not have a serious health condition that prevents him or her from performing the job), an employer must provide the designation notice (i.e., a notice informing the employee that the employer is not designating the leave as FMLA) within the time frame mandated by the regulation.  But then what?  The regulation – and the form for the “rights and responsibilities” notice – give the employee seeking leave 15 days to provide the Certification.  Must an employer wait the full 15 days before finally denying leave based on the negative Certification?  That is, does an employee have a full 15 calendar days to shop for a health care provider willing to contradict the prior negative Certification?

Because it looked to the failure of the employer to provide the “rights and responsibilities” notice in the first instance, the Sixth Circuit stated that it need not answer that question in the case before it. The Sixth Circuit did, however, take the opportunity to quote from an opinion of the Seventh Circuit (upon which the Sixth Circuit had relied on another point): 

Nothing in the [FMLA] or regulations limits the employee’s ability to produce a medical opinion that contradicts a prior negative certification originally provided by the employee. 

If an employee’s health care provider completes the Certification form, and unambiguously and clearly states an employee is “able to presently work without restriction,” an employer that relies on that statement before the full 15-day period has run could find itself in trouble if the employee subsequently turns around and finds someone else to contradict the initial Certification.  Adding to the murkiness of situations involving Certifications, under the provisions of 29 CFR §825.313, absent some “extenuating circumstances,” if the Certification is not returned within the 15-day time period, the employer can deny FMLA protections “until a sufficient certification is provided.”  Thus it seems the only safe basis for not classifying an absence as FMLA leave in such situations is if the employee never provides the Certification. 

A cautious employer may interpret the regulations as a whole as providing that an employee must be given at least 15 calendar days to provide a “sufficient” FMLA Certification – but longer if there is an “insufficient” or “incomplete” document, or if the employee claims an inability “under the particular circumstances . . . despite the employee’s diligent, good faith efforts” to obtain such Certification – before final action can be taken.  It is not a great stretch to imagine a plaintiff’s attorney advancing the argument that anything short of the foregoing on the part of an employer constitutes an interference with an attempted exercise of rights.

The current FMLA regulations retain the concept of a “second” and possibly a “third” opinion from a health care provider.  An employer that receives two conflicting Certifications, each from a health care practitioner of the employee, may have “reason to doubt the validity of a medical certification” such that it “may require the employee to obtain a third opinion at the employer’s expense.”  Employers are reminded, however, that 29 CFR § 825.307(b) states:

Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s established leave policies.

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.