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The FMLA allows employers to require medical certification to show an employee's need for leave, but many don't ask for it. In this case, the employer may have saved $50,000 and five years of litigation expenses if it had required the certification.
Employers often question how they can determine whether an employee's medical condition really qualifies as a serious health condition under the Family and Medical Leave Act (FMLA). What they forget is that the FMLA provides a tool to verify an employee's need for leave. Under the FMLA, an employer may require medical certification of that need. In a recent case from the Eighth Circuit Court of Appeals, Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir., 3/3/00), the court upheld the lower court's decision that the employer had violated the FMLA by terminating an employee for excessive absenteeism. The court determined that the employer may have been allowed to question the employee's need for leave if it had required her to provide medical certification when she took several days off to seek treatment for stomach problems. However, since the employer did not require certification, and instead simply accepted her doctor's notes indicating that she could not work, it forfeited its right to challenge whether the employee was covered under the FMLA. This decision cost the employer $50,000 for violating the FMLA and five years of litigation expenses.
Employee Terminated before Extent of Illness Known
This case began in February 1994 when the employee was absent for two days because of stomach problems. She returned to work with a doctor's note for those absences, then had to take an additional four days because of continued stomach distress. She again provided her employer a doctor's note stating "no work" for that four-day period. The employee was terminated soon after for absenteeism because her absences exceeded five percent of her scheduled work hours, a violation of the employer's policy. At the time of her termination, her condition had not been diagnosed, but her doctor suspected she may have a serious medical problem such as a peptic ulcer or gallbladder disease. It was not until several weeks after her dismissal that she was diagnosed as having several minor illnesses including a small hiatal hernia, mild gastritis, and duodenitis (an irritation of the small intestine).
The employee sued under the FMLA in 1995, claiming that she was entitled to FMLA leave and, therefore, should not have been terminated for her absences. Her claim took over five years to wind its way through the court system. First, the lower court initially concluded that the employee could not prove that her illness was a serious health condition under the FMLA. However, the Eighth Circuit asked it to reconsider its decision in light of a Department of Labor opinion letter defining the term serious health condition. The lower court then reversed its initial decision and found that the employee had a serious health condition and that the employer, therefore, had violated the FMLA. A Magistrate Judge addressed the issue of damages and awarded the employee $49,591.56 plus interest, costs, and attorneys' fees. The employer then appealed to the Eighth Circuit, claiming that the employee did not have a serious health condition within the meaning of the FMLA.
Employer Forgoes Medical Certification; Loses Case
In its appeal, the employer argued that the employee did not prove that she had a serious health condition or that the condition resulted in an incapacity that made her unable to work, as required to qualify for FMLA leave. The employer relied primarily on the fact that the employee only had minor ailments according to her ultimate diagnosis, which was made after her termination. The Eighth Circuit disagreed, finding that the employer did not raise any "genuine issues of material fact" to dispute that the employee had a serious health condition, and, therefore, her termination violated the FMLA.
The court arrived at its conclusion by looking at the definition of a serious health condition. Under the FMLA, a serious health condition is defined as a physical or mental impairment that involves any period of incapacity necessitating absence from work of more than three days and that also requires continuing treatment by a health care provider. In this case, the employee was sufficiently ill to see a doctor two times in a period of just a few days and could not work (once for more than three days) during that same time, according to her doctor. In addition, prior to her termination, the doctor assumed that the employee had more serious health problems and did not confirm the lesser ailments until after she was dismissed. Thus, the court pointed out that the employee appeared to have a serious health condition, which the employer did not question, at the time of her termination.
The court also focused on the fact that the employer accepted the doctor's notes after her absences, even though they provided little information about her condition other than indicating that she could not work. According to the court, the employer became obligated at that time either to count her absences under the FMLA or initiate the medical certification process. The FMLA specifically allows an employer to require detailed information from a health care provider about the diagnosis and duration of an illness to determine if it qualifies as a serious health condition. The court pointed out that had the employer required the certification, "it may have been able to determine that [the employee] did not have a 'serious health condition' within the meaning of the FMLA." Since the employer did not ask for the certification, it could not later challenge whether the employee had a serious health condition.
Ask for Certification, Even Additional Opinions
This case illustrates the importance of requiring medical certification from every employee who requests a leave for a medical condition. In this case, the employer lost its right to challenge whether the employee had a serious health condition because it accepted her doctor's vague notes and did not ask for any further documentation. Although the FMLA does not require employers to get medical certification, the court squarely placed the burden on this employer either to accept that the employee was covered under the FMLA or to require verification of the condition by asking for medical certification. To further help employers determine if an illness meets the FMLA standard, the Act even allows a second medical opinion if the employer has any doubt about the validity of the first certification, and a final third opinion if the first two conflict.
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Personnel
Policy Service, Inc.
