Fired Pregnant Worker Gets Second Chance After FMLA Certification Error

Here’s an FMLA tip for HR pros everywhere: Don’t require an FMLA certification to include information you already know.

And another important thing to keep in mind: Even if an employee taking FMLA leave doesn’t comply with your policy regarding the substitution of paid leave, they are still entitled to take unpaid leave under the law.

Let’s break down how those two points arose in a recent case out of Illinois – and how HR departments should respond.

Pregnant Employee Suffers From Morning Sickness

Dyamond Davis worked at an assisted living facility in Illinois.

In late April of 2017, Davis got sick at work. When she left work to get treatment, she learned she was pregnant.

During the first week of May, Davis missed work four times due to morning sickness. Her employer then gave her its FMLA packet and a medical certification form to be completed by her doctor.

What Does FMLA Certification Say?

On the FMLA certification, the doctor said Davis’ medical condition was “pregnancy.” She also said Davis needed to attend regular medical appointments until the baby was delivered, adding that she would need six weeks to recuperate after the birth. Finally, the doctor answered “no” to the question of whether Davis’ condition would cause “episodic flare-ups.”

Davis missed work again on May 11, and she left four hours early the next day due to morning sickness. Davis tried to use four hours of accrued holiday time to cover her absence that day, but she did not realize that she had only 3.5 hours of paid holiday time available.

She didn’t report the four-hour absence as FMLA-related because she’d not yet been approved to take FMLA leave. She did have other paid leave available, including paid sick time.

Even so, her employer decided that 30 minutes of the May 12 absence was not authorized.

FMLA Leave Request Is Granted

At the start of June, the employer approved FMLA leave retroactive to May 4.  Based on the contents of the FMLA certification, the employer approved a continuous six-week leave after the birth as well as intermittent leave for the appointments.

But the employer also decided that Davis’ absences related to morning sickness were not authorized, relying on the fact that the medical certification didn’t specifically mention morning sickness. The employer terminated Davis because of those “unauthorized absences” and her failure to follow the policy on substituting accrued paid leave for FMLA leave.

When Davis sued to allege an FMLA violation, a federal district court ruled against her.

Appeals Court Revives FMLA Lawsuit

A federal appeals court reversed the FMLA decision for the employer and remanded the case for further proceedings.

The appeals court rejected the employer’s argument that Davis’ morning sickness episodes were “flare-ups” and that it was off the hook because the FMLA certification specifically said Davis would not require leave for flare-ups.

But morning sickness is not a flare-up, the appeals court said.

“It is difficult to see how [the employer] could consider morning sickness to be a ‘flare-up’ … when FMLA regulations expressly define morning sickness [as a condition that justifies a need for FMLA leave],” the appeals court explained.

FMLA Compliance Lesson Learned

When an employer is aware of a particular health condition, the absence of a mention of that condition in an FMLA certification doesn’t excuse an employer from allowing leave for it, the court said. Here, the employer knew Davis needed leave for morning sickness when it approved her request for FMLA leave.

If the employer really thought the FMLA certification was deficient because it did not mention morning sickness, it could’ve asked Davis to supplement it with more information, the court said.

FMLA Leave Can’t Be Denied on a Technicality

The appeals court also said that while employers can establish procedures requiring employees to use accrued paid leave in conjunction with unpaid FMLA leave, an employee who does not comply with such policies is still entitled to unpaid FMLA leave.

Employers may not discipline employees because they did not comply with paid leave substitution procedures by denying the use of approved FMLA leave time, the appeals court explained.

The decision to grant summary judgment to the employer was reversed, and the case was remanded for further proceedings.

Key Lessons from the FMLA Certification Case

Here are your key takeaways from this ruling:

• The purpose of requiring a medical certification under the FMLA is to get missing information that supports the request for leave. It’s disingenuous at best to blame an employee for not supplying information on an FMLA certification that the employer already knows. Here, the employer knew the employee was suffering from pregnancy-related morning sickness when it approved the request for leave. It defied logic and common sense to suggest that the provided FMLA certification needed to say the employee might need to take FMLA leave for that purpose. For more help, check out Questionable FMLA Certification? 5 Ways to Fix the Problem.
• Employers can require employees to substitute accrued paid leave for unpaid FMLA leave. When that happens, accrued paid leave runs concurrently with unpaid FMLA leave. Employers can also require employees to follow their paid leave policies in connection with FMLA leave, but critically, they may not deny unpaid leave even if the employee doesn’t comply with paid leave policies. This makes it a terrible idea to deny FMLA leave to an employee who doesn’t comply with such a policy.
• The human element is real. Judges are obligated to apply the law, but they’re also human. If you fire someone over a petty offense and there are plausible legal arguments on both sides, you shouldn’t be surprised to see a judge (or jury) come down on the side of the fired employee. Here, the employer tried to justify the termination by pointing to the fact that a pregnant employee, who was clearly struggling with morning sickness, tried to claim 30 minutes more holiday time than she had available. Even if that was a legally plausible move, it was certainly not a good look. Aside from legal liability, consider the potential damage to employer reputation and employee morale before dropping the hammer on an employee for a minor offense.

Davis v. Illinois Dep’t of Human Services, No. 22-2118 (7th Cir. 5/14/25).