HR Basics, Legal Issues

The Wrong Way and the Right Way to Request FMLA Certification

FMLArequest

By Eric B. Meyer

The Family and Medical Leave Act allows an employer to require that a employee’s request for FMLA leave be supported by a certification issued by the employee’s health care provider. Here’s an example of one of the right ways to do this, from a recent federal-court decision.

Mr. Poling did not identify the FMLA-related reason for his absence. Still, Core gave Poling three separate chances to furnish a medical certification to justify his FMLA absence. After three strikes, Poling was out. That is to say, he was fired.

On September 20, 2008, Terry Poling called Core Molding Technologies at 3:35 p.m., leaving a voice mail message that stated: “Terry Poling, Night Shift, FMLA.”

One way to lose a FMLA claim

And then Poling sued for FMLA interference. And then he lost. Here’s why according to Judge Frost of the United States District Court for the Southern District of Ohio, Eastern Division, in the case Poling v. Core Molding Technologies:

An employee’s failure to provide the certification requested by the employer for leave already taken by the employee (the situation present in this case) means that the leave is not FMLA leave….This consequence is important in this case, as Plaintiff had exhausted all of his time off (other than FMLA) available to him; thus, FMLA leave was the only method by which Plaintiff could excuse his September 21, 2008 absence and avoid termination under the terms of the collectively-bargained attendance policy governing Plaintiff’s employment with Core….Core has established that it requested certification in writing on September 22, 2008 (the day after Plaintiff’s absence) and gave Plaintiff 15 days to comply…When Plaintiff failed to submit certification paperwork by October 8, 2008, Core gave Plaintiff another chance to submit it. And when Plaintiff submitted certification paperwork from his doctor that did not provide all of the information required, Core then gave Plaintiff an opportunity to cure the insufficient certification.

It is also undisputed that Core gave Plaintiff specific written instructions as to what information the certification paperwork had to contain in order to be considered valid, including the necessity of stating why leave was required on September 21, 2008, the specific day for which Plaintiff called off work for purported FMLA reasons…It was only when Plaintiff failed to cure the deficiencies in the certification within seven days that Core considered his employment termination to be final.

Plaintiff did not comply with Core’s valid request for a medical certification of the September 21, 2008 absence. Core was therefore entitled to treat Plaintiff’s absence as non-FMLA leave, which carried with it in this case the consequence of termination.”

Here are some more resources on how to properly request FMLA certification from an employee:

Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .