Employer wins certification challenge

01/03/2022

Key to remember:  Employers may terminate employees who don’t provide requested certifications, which results in absences not being protected.

Applies to: All public employers and private employers with 50 or more employees.

Impact to customers: Many employers struggle with employees who fail to provide requested certifications, and this case shows that employers do have some recourse in such situations.

 

While working for the company, Wilma was diagnosed with a painful condition. She told Carl, her boss that she needed time off for the condition. Carl told her about FMLA and directed her to HR. She sought FMLA leave in June 2016 and provided a certification. She subsequently requested and received an extension through October 17.

After that, things got interesting.

First, Wilma wanted leave from October 18 to November 30. She was told she was eligible for leave and was asked to provide a recertification. She did not, so the extension was denied. Regardless, Wilma continued taking leave.

Wilma then requested FMLA leave from December 1 through May 31 of the following year. She was not, however, asked to provide a certification. On January 31, her leave was denied because she did not provide a certification. On February 10, a certification was provided, but it was incomplete. On February 28, Wilma was told about this and that she needed to cure it within seven days. She did not. Therefore, this latest leave was also denied FMLA protections.

Still, Wilma took more leave.

On May 18, Wilma had a new doctor provide a recertification and it was fine. Therefore, her leave from May 18 to May 31 was approved.

Late that year, Wilma was terminated, and she sued, arguing that the employer interfered with her FMLA rights by denying her FMLA leave despite her eligibility.

The court did not agree with Wilma. It pointed out that she receives FMLA protection when she provided a certification and was properly denied FMLA leave when she did not provide a certification. Wilma knew that eligibility did not mean that her leave was approved.

While the company initially tripped up when it denied Wilma FMLA leave for the second period because it did not request a new reverification or include a certification form, it remediated that error. It gave Wilma another chance to submit a certification.

Friends, you may deny the FMLA protections if an employee does not provide a requested FMLA certification. If you make an FMLA mistake, courts might not take you to task if you fix the mistake, which often involves a bit of flexibility.

Watson v. Drexel University, 3rd Circuit Court of Appeals, No. 20-3001, September 27, 2021

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.

The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.