“How Long Must I Wait?” . . . FMLA Style

Darrell VanDeusen
Darrell VanDeusen

The Pennsylvania based rock band Dr. Dog has a song on its 2012 album “Be the Void” titled How Long Must I Wait?  It has a line in the second verse about the battle of Baltimore.  Extra credit there because it’s geographically local. 

What got me thinking about it was an Eleventh Circuit oral argument held in a FMLA case last week.  Magwood v. RaceTrac Petroleum, No. 22-12501 (11th Cir.) (arg. held 11/16/23).  The plaintiff appealed the entry of summary judgment for the employer on her ADA and FMLA claims.  Magwood v. RaceTrac Petroleum, 1:20-cv-01439-VMC (N.D. Ga. 1/27/22).

The case involves the requirement found in the DOL’s FMLA regulations at 29 C.F.R. §§ 825.305 and 825.313.  An employee typically has 15 days to return a completed certification form.   The regulations recognize that “extenuating circumstances” may arise and that an employee may get additional time to submit the form.  Section 825.305(d) provides that “[i]f the employee fails . . . to provide any certification, the employer may deny the taking of FMLA leave, in accordance with § 825.313.”

Section 825.313(b) provides that “[a]bsent . . . extenuating circumstances, if the employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. If the employee never produces the certification, the leave is not FMLA leave. (emphasis mine).

I’ve always wondered what “never” means.  This case may provide a hint.

Gina Magwood and a colleague processed invoices for new stores being constructed by RaceTrac.   In September 2018, Magwood felt stressed and said she intended to take a few weeks off from work.  Because of the way she identified her leave to Human Resources – she said that she needed time off for “mental clarity” – the HR folks gave her a FMLA certification form on September 15. 

Magwood’s therapist told her the form needed to be completed by a doctor.  Magwood’s regular doctor diagnosed her with “generalized anxiety disorder and insomnia,” and then sent her to a psychiatrist to treat her and to complete the form.  After her first visit with the psychiatrist, she reported to HR she needed to be seen “a few more times” before the form would be completed.

RaceTrac’s HR team treated each of these delays as “extenuating circumstances,” and provided Magwood with more time to get the completed form returned.   But then, on October 12, Magwood said she’d return to work the following week.  She was told she needed a doctor’s note to do so.  She came back on October 16; her “fit for duty” slip stated Magwood could return to work without restrictions of any sort.

When she returned to work without restrictions, HR noted that Magwood still had not returned the FMLA certification form.  Her employer then determined that Magwood’s month long absence was not FMLA protected leave. 

A few days later, Magwood was terminated.  It was recognized during her time away that one person could do the job two employees were doing.  That is, Magwood’s colleague was able to do all of the work that she and Magwood were expected to do while Magwood was away for the month.   This fact pattern is not uncommon – but if Magwood’s leave had been FMLA protected, RaceTrac arguably would have had to find a similar job for her. 

Magwood sued for alleged violations of the ADA and FMLA.   The district court accepted a magistrate judge’s recommendation that summary judgment be entered in RaceTrac’s favor.  As to the FMLA claim, the judge noted that because Magwood had never requested FMLA leave and had not provided the completed certification, her leave was not FMLA protected. 

The court rejected Magwood’s assertion that she should have been given even more time to provide the certification.  This conclusion is consistent with a number of appellate court decisions, which note that when employers have provided additional time for returning the certification, at some point the grace period for “extenuating circumstances” ends.

At oral argument, faced with the question Magwood’s “fit for duty” without restriction note – the only medical document the employer had – the best Magwood’s lawyer could do was respond that “the fact that a form states she is able to perform her job does not necessarily mean she doesn’t have a medical issue and need time off.” 

Actually, it does.  Self-care FMLA leave is designed to provide time off for folks who cannot perform their job due to a serious health condition.   So, there’s that.

The take-away here?  It is a “best practice” (and required by the regulations) for employers to provide additional time to let an employee return a completed FMLA certification.  I suggest the rule of three:  you get three chances to get it in before you strike out.  But, like most FMLA issues, the timing here depends on the particular circumstances of the situation.  It will be interesting to see how the Eleventh Circuit rules.

And, perhaps, upon reflection, Bob Marley and the Wailers’ Waiting in Vain (Exodus, track 7, 1977) would have been a better title for this blog.

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