Tuesday, September 7, 2010

Do you know? FMLA medical certifications: if you don't ask, then you can't deny

In Branham v. Gannett Satellite Information (9/2/10) [pdf], the Sixth Circuit faced the issue of whether a negative medical certification (that is, one that says an employee is not limited in performing the essential functions of the job) bars FMLA leave if the employee presents an opposite certification during the same certification period. Under the FMLA's regulations, an employer must give an employee 15 days to prevent a medical certification for an unforeseeable leave. During that 15 day period, Deborah Branham presented Gannett an initial form from her doctor which stated that she could perform the essential functions of her job, and a second form which stated that she could not. While the latter would have qualified her for FMLA leave, Gannett took the position that the initial negative certification disposed of the issue for the entire leave, and it could ignore the second certification. The Sixth Circuit skirted this interesting issue, but in the process made an important point about employers' obligations in following the rules and asking for medical certifications.

The rules on medical certifications under the FMLA are fairly straight-forward. After an employee asks for FMLA leave, an employer may require that the employee support the request with a certification issued by the employee's health care provider. This request by the employer must be in writing and must detail the employee’s specific obligation to provide the certification and the consequences of failing to do so (such as the denial of leave). The request may be oral only if (1) the employee handbook or other written FMLA policy clearly provided that medical certification would be required, and (2) the employee sought FMLA leave some time in the previous six months and received written notice of the medical-certification requirement at that time. If an employer uses the FMLA forms drafted by the DOL, the written notice will take care of itself in most instances. Based on these rules, the court denied concluded that Gannett's denial of Branham's leave request violated the FMLA.
Branham satisfied her notification requirement on November 13, 2006, when she asked Buhler “about taking leave, because [she] still wasn’t feeling well and had numerous doctors’ appointments scheduled for November and December.” But Gannett never properly triggered the additional duty to provide a medical certification supporting her claim. The district court found that Gannett requested certification on November 13, the day on which Buhler told Branham over the phone to come to the office and sign a short-term-disability form to “see if she qualified for anything.” In her deposition, however, Buhler testified that “Michele and I never at any time discussed FMLA leave.” It is true that Gannett’s short-term-disability form doubled as its FMLA leave form, but it is clear that Buhler communicated to Branham no information about the FMLA certification requirement, the fact that such certification was due within fifteen days, or the consequences of failing to return an adequate certification.... We therefore must conclude that Gannett was not entitled to delay or deny leave to Branham on the basis of the certification requirement. 
In this case, Gannett's biggest mistake was using its own form (the short term disability form) for FMLA purposes. It should have used the DOL's suggested forms. Part B of form WH-381, entitled "Notice of Eligibility and Rights & Responsibilities" [pdf], states:

As explained in Part A, you meet the eligibility requirements for taking FMLA leave and still have FMLA leave available in the applicable 12-month period. However, in order for us to determine whether your absence qualifies as FMLA leave, you must return the following information to us by _________________. (If a certification is requested, employers must allow at least 15 calendar days from receipt of this notice; additional time may be required in some circumstances.) If sufficient information is not provided in a timely manner, your leave may be denied.
The form then has this check-box: "Sufficient certification to support your request for FMLA leave. A certification form that sets forth the information necessary to support your request ____is/____ is not enclosed." All an employer needs to do to satisfy its requirement to ask for the certification in writing is use this form, fill in the date by which certification must be returned, check the box asking for the certification, and provide a copy of form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition [pdf]. The rules are not complicated, but, as Branham v. Gannett Satellite Information illustrates, the penalties for not following them are punitive.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.