Key to remember: Employees who don’t play by the FMLA rules, including providing a complete requested certification supporting the need for leave, risk losing their FMLA protections. Without those protections, employees can generally be disciplined, including termination.
Applies to: All public employers, and private employers with 50 or more employees.
Impact to customers: Employers often wonder what their rights are when they suspect employees are abusing FMLA leave, and this case helps illustrate what actions employers may take, when, and why
One day in August, Eli requested FMLA leave to care for his wife, as she was to have gall bladder surgery. The leave was approved. Sometime after the surgery, however, his wife developed vertigo, and Eli told Judy, his supervisor about the need for more intermittent leave to care for his wife due to the vertigo.
In an odd turn, Judy helped Eli complete the certification, but the part that was to be completed by a doctor was left blank. It was unclear whether Eli even submitted the incomplete certification.
The following May 2, Judy gave Eli a one-week unpaid suspension for violating the attendance policy when he missed six intermittent days of work in a six-month period, and he had no approved FMLA for those absences. Eli, however, believed that he had FMLA leave to cover his absences.
Eli contacted the third-party administrator (TPA) the company used to administer FMLA leave to request FMLA leave for some of his unexcused absences. He claimed he talked to someone there who said his FMLA had been approved.
On May 12, he told Loni, the plant supervisor that he needed to leave to take his wife to a doctor appointment. Later, Loni discovered that he did not have any approved FMLA leave for May 12, and Eli told her the TPA said he did. Eli also said he had contacted his wife’s doctor on May 15 and spoke to a “Marge” to request that they forward a copy of the FMLA certification. He went on to indicate that Marge said the doctor’s office needed the form, and Eli gave them a certification form the next day.
Loni followed up with the doctor’s office and was told they had no record of the certification request or Eli’s phone call, and that Marge was not even working that particular day.
Based on Eli’s suspicious information indicating his FMLA certification for leave between September and May, including the May 12 absence, Eli was suspended pending investigation. In response, Eli sent paperwork to HR as proof his leave was certified through May, but it was the incomplete certification related to his wife’s vertigo. HR told Eli that it was incomplete and expired, and that it was another example of dishonesty. Eli was terminated, and he sued, citing FMLA violations.
In siding with the employer, the court found that Eli wasn’t entitled to FMLA leave for his wife’s vertigo because he failed to provide a requested certification. Therefore, the termination could not be because he took FMLA leave. The case was dismissed.
Friends, you need not provide FMLA medical leave to absences that are not supported by a certification. In this case, it appears Eli didn’t follow the FMLA rules when it came to providing a certification but provided quite a bit of suspicious information. Remember, if Eli had provided an incomplete certification, the employer would be responsible for giving him the opportunity to cure it.
Shrock v. Drug Plastics and Glass Company, Inc., N.D. Indiana, No. 4:17-cv-53, June 2, 2022..
Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.