Human Resources News & Insights

FMLA: Court says red tape trumps common sense


Here’s proof that there’s no bigger pain in the butt for employers than the Family and Medical Leave Act.

The most recent horror story comes out of Tennessee, where a receptionist for a local newspaper was fired for excessive absenteeism.

The receptionist had missed several consecutive days of work, saying her absence was due to illness — first her young son’s, then her own.

Her supervisor informed her that she should fill out a short-term disability form (which also served as a FMLA leave form) “to see if she qualified for anything” in the area of medical leave.

She visited a physician, who in turn provided a medical certification form — but the doctor didn’t indicate that she was suffering from a medical condition that’d trigger eligibility for leave.

Indeed, the certification said just the opposite. The doctor’s opinion was that the woman should have been able to return to work the day after the appointment.

The woman continued to stay out of work. The employer double-checked the certification with the physician, who stood behind the original diagnosis.

The woman was fired.

New certification

Now things get complicated. The woman provided another medical certification form, this one from a nurse practitioner in the same practice as the woman’s previous doctor.

The nurse practitioner said the receptionist wouldn’t be able to return to work for several months.

After the company stuck to its termination decision, the woman sued, saying the employer had interfered with her FMLA rights.

The federal district court sided with the company, saying it was entitled to fire the employee when it received the “negative certification” from the doctor.

The company wasn’t obligated to “delay its termination decision until receipt of the second, unanticipated medical certification,” the judge wrote.

Not good enough, says appeals court

That common-sense approach to the case was turned on its ear by the federal appeals court.

Why? Timing.

FMLA gives employees 15 days to provide certification of a serious medical condition.

The decision to fire the receptionist was made 11 days into the process — 11 days after the company told her she needed to provide the paperwork.

And guess what? The nurse practitioner’s certification — the one that said the woman would need several months off — was received on the 15th day.

The other problem: The oral instructions from the woman’s supervisor were too vague. She wasn’t told specifically about certification requirements or the 15-day deadline.

So the appeals court came down on the side of the employee. The case now goes to trial, or gets settled out of court.

Got your crystal ball?

This case is a maddening example of how small oversights can trump common-sense decisions in FMLA cases.

The part of the decision that’s hardest to swallow: It appears the court is asking the employer to read the mind of the employee — in other words, somehow foresee that the second certification was forthcoming.

The company had received — and double-checked — official paperwork that indicated the employee wasn’t eligible for leave. And it made a reasonable business decision based on the information it had in hand.

Cite: Branham v. Gannett Satellite Information Network. For a look at the full court decision, go here.

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  1. Drummond Camel says:

    I am sorry if this is a duplicate …. I received an error message the first time. I found the Court’s implication interesting regarding …….

    “Gannett was not permitted to deny her leave based on the certification requirement
    when it never properly requested certification or informed her of the consequences of
    failing to provide the same, as required by Department of Labor regulations.”

    Would the Court had ruled differently if they had provided this?

  2. My question is this: Why the descrepancy between the Dr.s Certification and the Nurse Practictioner’s? And such a huge disparity. Next day vs several months? Looks fishy to me. Is there any checks and balances as to a “so called” certification? FMLA doesn’t affect our little company — not enough employees– so I have vague knowledge of it, but did that bill pass that mandated the employee gets “paid” while on FLMA? So much room for fraud!! as usual.

  3. I have a similar case right now…I was sure she was eligible for FMLA, but her doctor said not (she has intermittent flareups on a variety of conditions). So we are starting to monitor her attendance. We have no way to make an accommodation for unexpected, multiple absences and her work gets further and further behind. I am also concerned about ADA ramifications. It’s too bad the governmental agencies who create this stuff exempt themselves from most of it!

  4. Angela Lotito says:

    I agree that the employer acted to hastily; however, why no review on why the huge disparty between doctor and Nurse Practioner? Something does not sound accurate…..Most employers would assume the doctor should have more of a say of a medical condition versus a Nurse Practitioner especially from the same practice…..

  5. Along the same lines as what Drummond mentioned, it sounds like this is a misreading of the case. The company isn’t in trouble because HR’s crystal ball didn’t foresee the 2nd cert, but because the receptionist was not properly notified of the 15-day deadline or the consequences for failing the meet the deadline. That’s why anyone who requests FMLA leave, whether by name or not, should immediately be given the Eligibility Notice and Notice of Rights & Responsibilities along with the leave paperwork.

  6. @Jagger

    FML is unpaid, in and of itself.

  7. Actually, FMLA requires that a qualified medical professional make the determination for leave–specifically a health care provider such as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery. I’m not sure about a nurse practicioner. A Nurse practitioner may qualified under (b) “any other person determined by the Secretary to be capable of providing health care services”. Still, I would expect the primary care physician to be able to overrule the office nurse.

    I think this case may just show that folks need to work with their employees a little more and provide better management training–even if it’s just referring the employee to HR for leave requirements to ensure everything is in order and the employee has all the information they need.

  8. Looking further down on this, I wonder if the employer can take some type of legal action against the doctor and the nurse practitioner for their contrary statements or misdiagnosis of their patient and the employer’s employee.

  9. Wendy Evans says:

    This is an eye opening case. The Company is responsible to make sure it’s employees have all the information needed.
    FMLA is an unpaid leave but it holds that position open for the employee to comeback.
    The Doctor was the woman’s choice and the accredited Doctor stated the women was okay to work. The company double checked with the Doctor. I would think the Doctor would have more certification to diagnose an illness then the nurse practitioner in his office. This is also the medical note turned in to work by the employee personally. This allows employees to go “Doctor shopping” to get the answer they want.

  10. This is frustrating to say the least. I think the moral of the story is to (1) keep the employee properly informed, and (2) wait 15 days after that to initiate any action.

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