By Marti J. Cardi, Chief Compliance Officer, Reed Group
On November 7, 2006, employee Deborah Branham embarked upon a string of day-by-day absences for which she applied for FMLA leave. In an effort to be helpful, the employer, Gannett, faxed the medical certification form directly to Branham’s health care provider. The physician returned the form on November 17 and indicated that Branham could return to full duty work as of three days earlier, November 14, with no need for further leave time.
When Branham still had not returned to work by November 24, Gannett decided to terminate her. Because she did not return a Gannett manager’s call, a termination letter was sent to Branham on November 28. On that same day Branham called in and was told that she had been terminated. She obtained another appointment at her physician’s office, and at 6:00 p.m. that evening the nurse practitioner faxed to Gannett a new certification form indicating that Branham had been suffering from a serious health condition since May 2006 (despite the fact that she had been working most of the time since that date) and could return to work in January 2007.
Gannett sustained its termination decision on the basis of the “negative certification” it had received on November 17, and Branham sued for interference with FMLA rights.
Guess who lost, and why? The employer, for failing to follow FMLA rules. Gannett made the following mistakes:
Failure to Send the Notice of Rights and Responsibilities
Gannett never sent Branham the notice of rights and responsibilities required by the FMLA. [Currently 29 C.F.R. § 825.300(c).] This notice would have told Branham of her obligation to provide her employer with a certification within 15 days, and the consequences of her failure to do so.
According to the court, this failure meant that Branham’s duty to provide a medical certification was never triggered. The fact that two (conflicting) certifications were indeed received by Gannett within the 15 days of verbal notice was immaterial to the court. Branham was entitled to her notice and she didn’t get it. As a result, the employer was not entitled to delay or deny her leave on the basis of the certification requirement.
Lesson for Employers:
Always send the full FMLA packet, including the certification form, Notice of Rights and Responsibilities, and other documentation, to the employee immediately after receiving information that the employee may need an FMLA leave of absence. Even if there is a desire to facilitate the process for the employee by sending the certification form directly to a provider, be sure the employee receives complete and timely information. Reed Group’s procedures follow this best practice.
Failure to Allow the Employee the Full 15 Days to Provide a Supporting Certification
Gannett relied heavily on the fact that it received a “negative certification” from Branham’s physician – one that affirmatively stated that the employee could return to work. Gannett made its termination decision on the basis of this certification and Branham’s failure to return to work, even though the 15 days allotted to an employee to return a supporting medical certification had not expired.
Q: Is this always the case? Must an employer wait the full 15 days before taking action on a leave request (or an “unexcused” absence) even though it has received a certification stating unequivocally that the employee is able to return to full work?
A: The answer is unclear. The court noted that this was an issue of first impression in the circuit – meaning that it had not previously been addressed and decided by that court. Relying on a case from the Seventh Circuit, the court observed that nothing in the FMLA or regulations limits the employee’s ability to produce a medical opinion that contradicts a prior negative certification. But, the court’s decision was not based on this issue, so it is not authority for this proposition. As noted above, the court relied on the fact that Gannett never gave Branham her notice of rights and responsibilities. Therefore Branham’s obligation to provide a certification was never triggered, and Gannett could not take action against Branham on the basis of the medical certification requirement.
What Does this Mean for FMLA Leave Management Practices?
If you are wondering how Reed Group handles this type of situation, know that negative certifications are actually quite rare. We will still send FMLA denial notices upon receipt of a negative certification. However, if a subsequent timely certification is received that contradicts the negative cert, that later certification will be considered and the situation will be assessed on the facts of the particular situation. Employers are advised, however, not to take a negative employment action (termination, discipline) until the 15-day certification period has expired.
[Note that the FMLA regulations do not specify whether the 15 days is measured from the date a notice is sent by the employer or received by the employee. In accordance with client requests Reed Group may provide additional days over the required 15 to allow time for mailing.]