IVF-Related FMLA Dispute: Employee Fired Over Abuse Concern

A decision from a federal appeals court in Pennsylvania demonstrates the importance of clarity in FMLA certifications provided by employees.

The employer in this case was able to defeat a claim that it illegally retaliated against an employee because he took FMLA leave in connection with his wife’s IVF treatments.

The court ruled that the employer legally terminated the employee because it had an honest belief that he was abusing his FMLA leave.

Husband and Wife Work for Same Employer

The Hershey Company hired Velibor Divkovic as a production operator in September 2017. Nearly three years later, it hired his wife as well.

Between September of 2018 and August of 2020, Divkovic used FMLA leave for his own health conditions, which included anxiety and depression.

In February 2021, he asked for FMLA leave related to his wife’s IVF treatments. Hershey approved FMLA leave for one to four absences a week, with absences lasting between one and 12 hours. The approval period ran from a date in January 2021 through a date in June of the same year.

Hershey requires employees seeking FMLA to provide a medical certification in connection with their request. It reviews the form and files a designation notice once the leave is approved.

FMLA Certification Was Unclear

On the certification form, Divkovic said he needed to take the leave “for support, going to appointments, during procedures, [and] helping inject medications.” He also mentioned driving his wife to appointments.

The rest of the form, which was completed by a health care provider, didn’t talk about injections. Instead, it mentioned only a need for Divkovic to drive his wife to appointments.

Hershey went with that. In its designation notice, it said it was allowing the leave so Divkovic could transport his wife to her IVF-related medical appointments.

FMLA Leave … While Wife Was Working?

Hershey became suspicious when it noticed that Divkovic was taking FMLA leave at times when his wife was working. When it investigated, Divkovic explained that he was using the time to prepare IVF medical injections at home and take them to his wife at work. He said his FMLA leave allowed him to do so.

Hershey disagreed, telling him that the leave was approved solely for the purpose of driving his wife to appointments. Following its investigation, which included a contentious exchange during which Divkovic made an allegedly threatening statement, Hershey terminated his employment.

Divkovic filed a lawsuit against Hershey, alleging, among other things, that the employer illegally retaliated against him for using FMLA leave in connection with his wife’s IVF treatments.

Hershey filed a motion for summary judgment.

Retaliation Claim Falls Short

To win on his FMLA retaliation claim, Divkovic first had to show:

• He invoked his right to take FMLA leave
• Hershey took adverse action against him, and
• A causal connection between the two existed.

Hershey argued that its history of granting Divkovic’s leave requests showed he was not terminated because he took leave.

But the court wasn’t convinced. Past favorable FMLA treatment didn’t prove that the termination was not retaliatory, it said. The court proceeded under the assumption that Divkovic made the required preliminary showing of unlawful retaliation.

That showing shifted the burden to Hershey to articulate a legitimate, nondiscriminatory reason for the termination.

To meet this burden, Hershey said it had an honest belief that Divkovic was using his leave for a reason other than its intended purpose. Specifically, between February and May of 2021, Divkovic used at least 20 full FMLA days on days when his wife worked a full day. It also pointed to the fact that Divkovic took full days off on days when he said he needed to help with the injections, even though it only took about 30 minutes to get the injections ready.

That was enough for Hershey to form an honest belief that Divkovic misused his FMLA leave, the court decided.

As such, the burden shifted back to Divkovic to show Hershey’s stated reason for the termination was a pretext for discrimination. He did not meet that burden, the court said.

Divkovic argued that Hershey had a duty to ask him to clarify his certification, but the court disagreed. It granted the employer’s motion for summary judgment.

Moreover, after the case was filed, Hershey discovered that Divkovic had taken FMLA leave on 25 days when his wife had no medical appointments and did not take any IVF injections.

FMLA Certifications: Take Out the Guesswork

Under the FMLA, employers can require a certification when an employee requests leave for their own serious health condition, the serious health condition of their parent, spouse, son or daughter, and for military family leave.

According to a DOL guidance document on the FMLA, the certification needs to include:

• The healthcare provider’s contact information
• When the serious health condition began and how long it will last
• Whether the employee is unable to work, and for how long
• If a family member is the patient, whether that person needs care and how much leave is needed
• Whether the need for leave is continuous or intermittent, and
• Appropriate medical facts.

If an employer determines that a medical certification is incomplete or insufficient, it must tell the employee in writing the additional information that is needed.

In this case,  there was no indication that the employer believed the certification was incomplete or insufficient. Rather, the employer and employee had different views of what the certification permitted and what it did not.

In an ideal world, Hershey would have recognized the internal inconsistency within the certification and clarified the permitted reasons for leave beforehand.

Lesson: Take a careful look at FMLA medical certifications to ensure a clear understanding between employer and employee of how FMLA leave will be used.

Divkovic v. The Hershey Co., No. 1:21cv1947 (M.D. Pa. 3/21/25).