FMLA certification questions cause major headaches
In a case decided just last month, a federal court in Alabama illustrated the potential risk of making a fairly simple mistake under the Family Medical Leave Act (FMLA).
Summary of facts
The plaintiff-employee was hired as a full-time materials handler by defendant-employer at its automotive component production facility near Birmingham, Alabama. Part of the employee’s duties included lifting objects weighing more than 10 pounds and operating a forklift. During the first few years of his employment, the employee occasionally missed work due to flare ups of his gout, arthritis, and hypertension.
To avoid disciplinary action for missing work due to these medical conditions, the employee requested time off pursuant to FMLA. (As you may know from our other blog posts, FMLA allows up to 12 weeks of unpaid time off for eligible employees of covered employers during a 12-month period.) To receive FMLA leave, the employee was required to submit a certification form completed by a physician or healthcare provider. The form, which was created by the United States Department of Labor, consists of primarily “Yes” or “No” check boxes with additional space for physicians to include comments.
Consistent with his employer’s policy, the employee submitted a completed form in 2014, 2015, and 2016, which was filled out by his physician and nearly identical to each other. The physician indicated that the employee suffered from flare ups and would need time to recover after each flare up in addition to taking time off for regular doctor’s appointments. Based on this, the employee requested intermittent leave. Under the FMLA, an employee may take continuous leave—all 12 weeks in one big chunk—or intermittent leave—12 weeks spread out sporadically over 12 months.
The employer allowed the employee to take intermittent leave in 2014 and 2015. But in 2016, the employer denied the employee’s request for intermittent leave—even though his completed certification form was nearly the same as what he submitted in previous years. Instead, the employer placed the employee on continuous leave on the basis that he could not perform the duties of his job. The employer told the employee that he could not return to work until his physician removed his restrictions listed in his FMLA certification form (not able to lift 10 pounds). The physician would not remove the restrictions. Important to the case was that the employer failed to seek clarification from the physician as to whether the employee’s limitations existed all the time or only during flare ups.
After 1 month on unpaid FMLA leave, the employee resigned. He later filed suit for violations of the FMLA and the Americans with Disabilities Act (ADA).
In the lawsuit, the employee asserted four claims:
- Disability discrimination under the ADA for failing to reasonably accommodate him with intermittent leave.
- Constructive discharge in violation of the FMLA.
- Interference with FMLA by denying his request for intermittent leave.
- Retaliation for requesting intermittent FMLA leave.
After the close of discovery, the employer moved for summary judgment. The court granted the motion as to the constructive discharge claim but denied the motion as to all other claims.
In reaching this conclusion, the court relied heavily on the fact the employer had granted intermittent leave to the employee in 2014 and 2015. That demonstrated the employee was able to do his job with intermittent leave and that intermittent leave was a reasonable accommodation. The court also relied on the physician’s mention of flare ups in the certification form, which should have triggered the employer to seek clarification from the physician.
Additionally, the court determined that the denial of intermittent leave—even when approving continuous leave—was a standalone interference with the employee’s FMLA rights unless the employer could show that only continuous leave would suffice. Since there was a factual dispute on that issue, the court denied the employer’s motion for summary judgment. Lastly, the Court determined there was a fact issue as to whether the employer had a legitimate, nonretaliatory reason for placing the employee on continuous leave. Because of these factual disputes, three of the four claims asserted by the employee will go to a trial by jury—costing additional time and money for the employer.
Evaluating between intermittent and continuous leave under the FMLA is a serious task. If an employer plans on denying intermittent leave, the wisest course of action may be to seek clarification from an employee’s physician first. Knowing what to ask—and how to follow up—may save an employer from the headache of defending FMLA claims.
For more information, see Brown v. Gestamp of Ala., LLC, No. 16-1862, decided by the U.S. District Court for the Northern District of Alabama on July 18, 2018.
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