Technical Notification Failure Dooms FMLA Defense

Employer's Failure Allows FMLA Claim To Go Forward

The Story: A newspaper receptionist, who was allegedly fired for violation of her employer's attendance policy, had a triable Family and Medical Leave Act (FMLA) claim because the employer did not effectively trigger the plaintiff's obligation to provide medical certification of her condition, a circuit court decided.

Reversing summary judgment for Gannett Satellite Information Network, owner of the Dickson Herald in Tennessee, the circuit court determined that Gannett could not rely on employee Deborah Branham's failure to provide medical certification as a justification for denying her FMLA leave and firing her.

Instead, the court found that Branham satisfied her statutory obligation to notify the employer about her need for medical leave, and that Gannett "never properly triggered her additional duty to provide a medical certification supporting her claim."

In the case, a physician, Dr. Pamela Singer, examined Branham on November 13, and the doctor wrote a "negative certification" indicating Branham's condition was "normal," and that she should be able to return work November 14. Nevertheless, Branham remained absent for most of the subsequent two weeks, due to migraine headaches, nausea, depression, and insomnia.

On November 24, Gannett fired Branham for violation of the company's attendance policy, as she was absent after the date the doctor released her to work. On that same day, however, Gannett received a faxed certification form from a nurse practitioner in Dr. Singer's practice group, stating that Branham's illness began on May 6, and was expected to last until January 1, 2007.

The lower court ruled for Gannett, holding that the employer was entitled to rely on the negative certification—which denied leave to Branham—and Gannett did not have to wait for the completion of FMLA's fifteen-day certification period when Branham never indicated she was seeking a second opinion.

However, the Sixth Circuit reversed. It noted that it didn't have to deal with the question of the negative medical certification and the 15-day waiting period because Gannett did not take the prescribed steps to trigger Branham's obligation to provide medical certification in the first place.

The court determined that "Branham has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and Gannett was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by regulations."

Even if the company representative had discussed all the appropriate information, an oral request would have been "insufficient to activate Branham's certification duty," the court said.

As my current clients know, I talk a lot about issuing FMLA paperwork when an employee has been absent from work for three consecutive days or more (day four) for the same or related illness. It’s a lot less expensive to send out the certification form, and it not be needed, than to face the issues in the above case. Although they do not state the actual damages and monetary award in this case, it reads to have been substantial.

Edited for use in this blog.


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