The DOL’s FMLA Regulations are pretty clear on when you can take action against an employee for failing to provide medical certification. Section 825.305(d) provides that: “At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” 29 C.F.R. § 825.305(d). FedEx recently learned the hard – and expensive – way from the Sixth Circuit that the regulatory language means what it says. Wallace v. Fedex Corp., 2014 U.S. App. LEXIS 16208 (6th Cir. August 22, 2014).
Tina Wallace had worked for FedEx for over 20 years, most recently as a paralegal, when she confronted a series of medical difficulties that required her to take time from work. She was reluctant to disclose these health issues. Eventually, she met with FedEx human resources personnel to explain that she needed time off from work. She was given a blank FMLA medical certification form and verbally told to have it completed by her doctor and return it to FedEx. No one told her, however, about what would happen if she did not return the form.
Wallace had her doctor complete the form, but she did not return it. Two days after the 15 days provided in the regulations for returning the form passed, FedEx fired Wallace for her failure to return the certification form. Wallace sued.
The next three years saw all sorts of messy litigation in the case. But on the issue of the medical certification form and her termination, Wallace’s position was pretty simple: no one told her that if she didn’t return the certification form within the 15 days she would be fired. (Note that such a draconian consequence is really not a best practice, since Section 825.305 also suggests the need to remind the employee of the need to return the certification form if it’s not provided within 15 days). There was nothing provided to Wallace in writing of the consequences of not returning the form, and she testified that “she would have called or turned in the medical-certification form if she had known the consequences of not doing so.”
A jury returned a verdict for Wallace on the issues of liability and back pay; the judge held that Wallace was not entitled to liquidated damages or front pay. There were cross appeals. On the issue of the termination, the Sixth Circuit held that FedEx caused its own mess by failing to follow the requirements of Section 825.305. Simply put, the jury found that FedEx failed to follow the requirements of the regulation and so could not penalize Wallace for failing to return the completed certification form. Reviewing this conclusion, the appellate court agreed and rejected FedEx’s multiple (complicated) legal arguments that did not address the fact it had, in fact, failed to follow the rules. Wallace recovered $173,000, plus her attorneys’ fees and costs.
The takeaway from this case is pretty simple. In every FMLA situation reduce the expectations of the parties to writing, and then follow them. Think of any document created and sent to an employee as a possible “Exhibit A” in a subsequent case. If it was blown up on poster board (or on a computer screen) would it be unquestionably clear that the employee knew what was expected?