Wait Before You Terminate: FMLA Lessons

November 2, 2010

One of your employees calls in sick on November 6 and 7 saying she needed to care for her sick son. On November 8 and 9 she calls in saying that now she is sick and has an appointment with a doctor. She finally forwards to you a doctor’s release indicating that she will return to work on November 14. That day comes and goes and the employee never shows up. On November 20 you call the employee to let her know that her job would be in jeopardy if she could not produce documents that confirmed her need to be off of work. She tells you that she sent you the wrong medical certification and would send you one from her primary care physician. On November 24, after you have received nothing, you decide to terminate her under the company’s absence policy. On November 28 you send her a termination letter dated the 24th informing her of the decision. You also decide to contact her personally on the 28th to let her know that she was being terminated. That evening you receive a fax FMLA medical certification signed by a nurse practitioner stating that the employee would not be able to return to work for a month. Is this a story of too little, too late for the employee? Not according to the Sixth Circuit Court of Appeals1.

In Branham v. Gannett Satellite Information Network, Inc., the court found that the employee under these facts had established that she was entitled to FMLA leave. The court held that employees are entitled to the full 15-day certification period to provide a medical certification supporting the need for FMLA leave. That means that even though the employer received a note from a doctor indicating that the employee could come back to work, the employee was still entitled to the full 15 days to seek a medical certification that supported the leave. The company’s mistake was assuming that the first doctor’s note was the only paperwork that they would receive from the employee. In addition to this, the Sixth Circuit also found that the company could not deny FMLA leave to the employee because there was no evidence that it ever formally requested the employee to provide a medical certification in accordance with FMLA regulations.

Lessons learned:

  • Follow the FMLA regulations to the letter when requesting medical certifications from employees
  • Allow employees all the time that they are entitled under the FMLA to return a medical certification
1The Sixth Circuit covers Kentucky, Michigan, Ohio and Tennessee.