Tuesday, September 2, 2008

Employer's failure to provide written notice does not save employee who failed to return to work following FMLA leave

Under the FMLA, an employer must provide an employee taking FMLA leave "with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." 29 CFR 825.301(b)(1). In fact, the Department of Labor provides a convenient form for employers use. Among other items, the notice must provide whether the employer will require the employee to "present a fitness-for-duty certificate to be restored to employment." 29 CFR 825.301(b)(1)(v). If an employer fails to provide the required notice, "the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice." 29 CFR 825.301(f).

Tucker v. Middleburg-Legacy Place (6th Cir. 8/29/08) answers the question of what happens if an employee mistakenly assumes that a fitness-for-duty certificate is required before she can return to work. When Sonia Tucker started her FMLA leave, she claims that her employer did not provide her with the written notice required by 825.301(b)(1). She also claimed that while she was cleared to return to work on January 17, 2007, she failed to do so because she believed her employer required a fitness- for-duty certificate. When she failed to show up for work on January 17, the employer fired her for job abandonment.

The Court held that even if the employer failed in its obligation to provide Tucker with the required written notice, her FMLA claim warranted dismissal because she did not claim that the fitness-for-duty certification was an actual requirement:

Plaintiff has further failed to allege she was terminated for failing to present the fitness-for-duty certificate. In ¶ 12 of her Amended Complaint, Plaintiff alleges, “defendants unlawfully terminated plaintiff from her employment for alleged job abandonment.” (Emphasis added). She does not allege her employment was terminated for failure to provide a fitness-for duty certificate. Plaintiff clearly alleges she “had been initially cleared to return to work from her medical leave on January 17, 2007.” (Amended Complaint at ¶ 9). She did not return to work on that date. Rather, she went to her physician on that day to be examined and to obtain a fitness-for-duty certificate. (Amended Complaint at ¶ 11). Nowhere does Plaintiff indicate she advised Defendants of the doctor’s appointment, or otherwise communicated with Defendants on the date of her scheduled return. As the Magistrate Judge noted, the provision in 29 C.F.R. § 825.301(f), barring employer action against an employee for failure to present a fitness-for-duty certificate “is only triggered if the employer actually required the employee to present a fitness-for-duty certificate.” (Emphasis added).

Typically, ambiguous employment policies do not help an employer. In this case, however, the ambiguity was fatal to the employee's claim. Because the employer did not tell the employee, in writing, that a fitness-for-duty certificate was required, the court overlooked its failure to tell the employee that the certificate was not required.

Despite this decision, it is not a real good idea for companies to ignore their obligations under 825.301(b)(1) to provide written notice to employees taking FMLA leave. Much more often than not, that failure will invoke 825.301(f)'s protections, and an employer will not be able to fire an employee who fails to meet some other FMLA obligation (such as returning to work).