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Do they teach FMLA certification in medical school?

June 26th, 2015  |  Joy Waltemath

OK, so I don’t know whether they do or not, but I bet that if they do, it’s not a particularly popular rotation for med students. Health care professionals in general likely are not delighted to be handed an FMLA medical certification form.

Employers certainly have their problems with the FMLA, too, and the Third Circuit took an employer to task this week about its failure to give an employee notice that the medical certification she supplied was “incomplete or insufficient” and to give her an opportunity to cure it rather than simply firing her, as it did without first telling her it had denied her FMLA request two days before because her “condition presently [did] not qualify as a serious health condition under the criteria set forth” by the FMLA.

(1) Certification; (2) firing; (3) FMLA denial—in that order. The employee’s doctor completed an FMLA request form on March 13 seeking intermittent leave twice a week starting March 1 “for a probable duration of one month or until about April 1, 2013.” The employee was absent March 13-14 and 23-25. On March 28, she was fired for those absences. Shortly after she was fired, the employee was diagnosed with diabetes and high blood pressure, which were found to be the cause of her symptoms the month before; these were chronic and permanent, requiring continuing medical treatment.

Negative or insufficient certification? In her subsequent FMLA interference suit, the district court concluded that her medical certification was “invalid” and “negative on its face” because it requested only one month of intermittent leave and did not show a chronic serious health condition. It rejected her argument that the certification was simply insufficient and that she should have been given seven days to cure its deficiencies under the FMLA regulations.

What is sufficient certification? Pointing out that Congress passed the FMLA so that employees could “take reasonable leave for medical reasons,” the Third Circuit explained that an employer may require “sufficient” certification from a health care provider that states: (1) the date on which the condition began, (2) the probable duration, (3) relevant medical facts, (4) that the employee is unable to perform the functions of her position, (5) the dates and duration of any planned medical treatment, and (6) the expected duration of intermittent leave.

Regs say what to do. DOL regulations govern how employers are to respond to perceived deficiencies in medical certifications. An employer “shall advise an employee” when it finds a certification incomplete or insufficient, and “shall state in writing what additional information is necessary to make the certification complete and sufficient.” A certification is “insufficient” if the information provided is “vague, ambiguous, or nonresponsive.” If the employer finds the certification incomplete or insufficient, it may deny the leave request, but only if it “provide[d] the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.”

Certification here was “insufficient,” not negative. Although the district court said the employee’s certification was “invalid” and “negative on its face” so that she was not entitled to attempt to cure it, the regulations say nothing about a “negative certification,” which is a judicially created concept that refers to certifications that say an employee is not incapacitated and can perform his or her job. Here, the employee’s certification did not say she would not need to miss work; it said she needed intermittent leave. (The court declined to decide whether the certification established the “extended period of time” required for chronic serious health conditions.) Besides, said the Third Circuit, even though the First, Sixth, and Seventh Circuits appear to agree that “employers have no responsibility to conduct further investigation when a certification is invalid on its face,” cases about negative certifications offer little guidance about how to deal with ambiguous or non-responsive certifications.

The employee’s certification here was “insufficient” under DOL regulations because it was “vague, ambiguous, or non-responsive.” It stated that the employee “request[s] intermittent leave at a frequency of 2 times weekly . . . and lasting for a probable duration of one month.” To the appeals court, that was vague because it failed to specify whether the one month duration referred only to the length of her leave request or to the duration of her condition. In fact, the certification never even mentioned her “condition.”

Seven days to cure. Because the employee’s certification was insufficient, under the regulations her employer was required, upon receiving it, to advise her that it was insufficient, to state in writing what additional information was necessary to make it sufficient, and to provide her an opportunity to cure the deficiency—within seven days—all before denying her request for leave. It did none of those things. Instead it fired her without first notifying her that her leave had been denied.

No clairvoyance required. Both the employer and the dissent seemed to believe that because the appeals found this medical certification was “insufficient,” someone could now bring an FMLA interference claim against an employer, regardless of his or her condition when leave was requested, by claiming the diagnosis had “changed or was not finalized” until after the request was made. The employer said that because of the short duration of the employee’s symptoms before she sought leave it had no way of knowing she had a chronic serious illness.

But the issue wasn’t notice here, since she provided a medical certification that asked for leave. The appeals court specifically said it was not burdening employers “with the troublesome task of predicting, on their own, the nature and trajectory of their employees’ illnesses.” The question was not whether the employer could have known she was suffering from a chronic condition at the time she requested leave; instead, it was whether the certification was insufficient and/or incomplete, and what to do about it. “Receipt of an insufficient or incomplete certification triggers certain regulatory obligations on an employer that are unrelated to its understanding of the employee’s health condition.”

Seven days could have avoided this. Curious about how physicians feel about FMLA certification requirements? Last year Jeff Nowak, of Franczek Radelet’s FMLA Insights blog fame, posted a blog about what employers can learn from physicians in the context of the FMLA. One of his points was that health care professionals often can’t be precise when it comes to frequency and duration; what they can provide is their “best educated guess”—and sometimes they can’t even be precise as to a diagnosis.

The Third Circuit here called the certification insufficient (I might have gone so far as to say it was incomplete, since it lacked even a “condition”). If you get a certification like that, the regulations say you must advise the employee that it is insufficient, state in writing what additional information is necessary to make it sufficient, and provide an opportunity to cure the deficiency within seven days. Here, the employer spent a couple of years and no doubt significant resources explaining to the district court, and then the appeals court, just what was deficient about the employee’s medical certification. What would have happened if it had explained to the employee instead what was wrong with her certification and waited seven days?

The Third Circuit decision is Hansler v. Lehigh Valley Hospital Network, June 22, 2015.