There’s one element of the Family Medical Leave Act (FMLA) that doesn’t get a lot of press. But forgetting about it could be a very costly mistake.
Here’s a question for your company: When you request FMLA certification from an employee, do you make it clear — in writing — what the consequences are of failing to provide an adequate certification?
If not, you can’t take a negative action against the employee for failing to provide an adequate certification — like denying leave or, even worse, terminating an employee because the person’s absences didn’t count as FMLA leave.
It’s all outlined in black and white under section 29 C.F.R 825.305(b) of the FMLA.
No medical certification, no excused absence
FedEx recently failed to comply with this regulation, and ended up having to shell out $173,000 in back pay and damages to an employee it terminated after she failed to provide a medical certification.
Here’s what happened:
Tina Wallace was a senior paralegal at the delivery service company, and she suffered from a variety of health problems. When her health condition required her to take leave, FedEx offered her FMLA leave and asked her to complete medical certification forms and return them within 15 days.
Wallace, however failed to return the forms within the 15 days because, as she later told a court, “she could not bring [herself] to contact them [FedEx] or see them or go to them to provide those [forms] to them because of … the way that [she] was feeling …”
When the forms didn’t arrive on time, Wallace’s supervisor then tried contacting her numerous times by phone, claiming he received a busy signal each time. He also sent Wallace an email stating that he’d received no documentation from her, but he didn’t receive a “read receipt” indicating that Wallace had opened or seen the email.
Shortly thereafter, FedEx terminated her for failing to comply with its attendance policy, which states “[e]mployees who are absent for two (2) consecutive workdays without notifying a member of management within their organizational hierarchy shall be considered to have voluntarily resigned their employment with [FedEx].”
Wallace then sued for FMLA interference.
At trial she claimed she would have turned in the medical certification forms if she’d known the consequences of not doing so.
Court: No consequences, no legal termination
FedEx fought her suit, claiming that she was never entitled to FMLA benefits because she failed to return the medical certification form required under the law — and if she wasn’t entitled to benefits, FedEx couldn’t have interfered with them.
But a court denied this motion, ruling a reasonable jury could conclude that FedEx failed to comply with the FMLA requirement to explain the consequences of not returning a medical certification form.
Wallace’s case then went before a jury, which ruled she should receive $173,000 in back pay and damages — and that award was later upheld by the U.S. Court of Appeals for the Sixth Circuit.
Cite: Wallace v. FedEx Corp.