When an employee takes Family Medical Leave Act (FMLA) leave, the employer is allowed to ask for “certification” of the need for leave. Essentially, certification is basic verification that the individual, or a covered spouse, child, or parent, is suffering from a “serious health condition.” While employer’s can request additional information, the amount of information is rather limited and the Department of Labor has created specific forms that healthcare providers can fill out that satisfy the FMLA notice requirements (Employee; Family Member). If certification is requested, the employee needs to take reasonable steps to get the additional information to the employer and a recent case from Massachusetts is an example what happens when those steps are not taken. See Brookins v. Staples Contract and Commercial, Inc., Civil Action No. 11-11067-RWZ (D. Ma. Feb. 12, 2013).
Follow the jump for all of the unfortunate details (hat tip to FMLA Insights for flagging this case)…
In Brookins, an employee who had suffered two bouts with breast cancer learned that the cancer had returned a third time. The employee notified her superiors who said she could take time off as long as she returned a certification within 15 days. The employee contacted her surgeon, who refused to fill out the paperwork, and then contacted a previous surgeon, who also refused to fill out the paperwork. She was then absent several times seeing three other doctors but never making another certification request. After the 15 days had passed, the employee was notified that her FMLA leave was being denied. The employee contacted her employer and asked for an extension but never turned in the certification paperwork. A month after the initial certification deadline, the employee was terminated. The employee then filed suit for FMLA interference.
In reviewing the employee’s claim, the court noted that Department of Labor regulations have fleshed out the certification requirements. The regulations note that an employer can require a response within 15 calendar days “unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.” See 29 C.F.R. §825.313(b). If the employee fails to provide the certification then the employer can deny the FMLA leave until the certification is submitted, or if it is not submitted, deny the leave entirely. The court noted that even though the employee was initially rebuffed, she had multiple meetings with a variety of doctors who had not refused the certification. Therefore, the court held that the employee had failed to provide certification and her leave was not protected by the FMLA.
Unfortunately, Brookins is an example of the fact that even in situations with sad facts, the court is going to closely analyze whether an individual followed the FMLA requirements. The FMLA is designed to be very employee friendly but that will not excuse a failure to respond to required requests for certification.
If you are an MNEA member and have questions about your own need for FMLA leave, please do not hesitate to contact us right away.