Failure To Comply With The FMLA’s Recertification Procedures Ruins Employer’s Summary Judgment Chances

Kollman & Saucier
Kollman & Saucier
07/12/2013

In Hansen v. Fincantieri Marine Group, LLC, (E.D. Wis. June 14, 2013), the employee suffered from depression and had  episodic flare-ups that prevented him from working.  He was approved for intermittent FMLA leave based on his  certification from his health care provider which advised the employee may experience “about four episodes every six months” and which would incapacitate him “two to five days per episode.”

Within the first two months the employee had seven episodes, each requiring about two to three days of leave.  On the employee’s eighth episode, the employer faxed a letter to the employee’s doctor requesting confirmation of the initial medical certification because the employee had exceeded the estimated number of episodes.  The faxed letter included the wrong doctor’s name, included references to an unrelated person, and mistakenly asked the doctor to confirm the employee’s “need to work on a part-time or reduced schedule,” which had never been part of the employee’s request.

The employee’s doctor faxed back the letter with a handwritten note “confirmed.”  The employer interpreted this response as confirming the initial certification of four episodes every six months, and therefore, concluded that the employee had exceeded his approved leave.  The employer then denied the employee’s requests for additional leave.  Ultimately, the employee accumulated too many absences under the employer’s attendance policy and was terminated.

Four days after termination, the employee’s doctor modified his original certification and increased the frequency of the episodes.  The employer did not alter its decision or otherwise respond.  The employee sued under the FMLA, claiming interference and retaliation.  The employer moved for summary judgment, and the motion was denied.

Although the court recognized that an employer may request recertification where the employee’s frequency of absences exceeds what is described in the initial certification, the court faulted  the manner in which the employer did so in this case.  The employer’s faxed letter to the doctor did not comply with the FMLA’s procedures for requesting a recertification because the employer did not give notice to the employee of the fax and contacted the doctor directly rather than sending the recertification request via the employee.  The information in the letter also was unrelated to the employee.

The employer’s letter was not a request for recertification because it did not ask the doctor to certify whether that the additional absences were FMLA qualifying; it merely asked the doctor to confirm his previous certification.  The court concluded that while it appeared that the employee “was taking off from work more than was medically necessary,” the employer failed to utilize the procedures set forth in FMLA for substantiating employee requests for leave through the recertification process.  Thus, the employer could not rely on its request or the doctor’s response to support its decision to deny the employee FMLA leave and terminate his employment.  This case is an important reminder of compliance  with the specific processes in place for FMLA compliance.  The list is long but each step is important.

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