by Narcisa Symank
The short advice, of course, is think twice and carefully before deciding to terminate an employee who is taking or attempting to qualify for FMLA leave.
A recent case from the Seventh Circuit Court of Appeals, Hansen v. Fincantieri Marine Group, LLC, addresses some of the perils of administering employee FMLA leave. There, the employee obtained a medical certification in connection with a request for intermittent leave. The certification provided that the employee had depression that would cause ongoing episodic flare-ups. The physician estimated the employee would experience two to five days of incapacity approximately four times every six months.
Over a period of two months, the employee was absent from work on five separate occasions. As a result, in less than two months, the employee exceeded the leave estimated to be needed in a six month period.
When the employee requested additional leave, the employer sent a fax to the physician indicating that the latest request exceeded the scope of the FMLA certification. The employer requested confirmation of item # 7 on the previously provided certification form. “Item # 7” asks about the employee’s need to attend follow up appointments or work part-time or on a reduced schedule because of the employee’s condition. The Court questioned whether the employer meant to seek confirmation of item # 8 instead of 7, that is, whether the employer meant to seek confirmation of the prior estimated frequency of episodic flare-ups. The physician responded with “item #7 confirmed.”
The employer denied the leave request, as exceeding the permitted frequency of leave pursuant to the FMLA certification. After the employee missed several additional days of work, he was terminated for violating the attendance policy.
Depending on the circumstances, if an employee exceeds the amount or is outside of the type of leave allotted under the FMLA, the employer may terminate the employee. The employer in the Hansen case clearly believed the employee was not entitled to leave. However, the Seventh Circuit found that there was question as to whether the employer’s termination decision was justified. The Court explained the employer should have requested additional information about the leave needed especially considering the initial certification provided merely estimates of the frequency of flare ups.
The lesson of this case in particular, and FMLA administration in general, is that every case depends on the particular facts at issue. The employer should engage in a dialogue with the employee, and provide the employee sufficient opportunity to provide additional information and modifications to the certification. “Say yes or no” faxes to the doctor will likely rarely suffice in today’s legal environment.
Terminating an employee for exceeding the scope of allotted leave under the FMLA is still legal. However, in addition to the issues raised by Hansen, the FMLA in itself, as well as its interplay with other laws, provides room for costly missteps. As just one example, even when an employee exhausts FMLA leave, he or she may be entitled to additional leave under other federal laws. Accordingly, take extra caution in handling employee medical leave requests.
Narcisa Symank is a member of the Sandberg Phoenix Labor and Employment Law team and can be reached at 314-231-3332 or by visiting SandbergPhoenix.com
Submitted 9 years 340 days ago