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Sixth Circuit Holds Employer Failed to Trigger Plaintiff's Duty To Provide Medical Certification Under FMLA In Branham v. Gannett Satellite Info. Network, Inc., 2010 U.S. App. LEXIS 18328 (6th Cir. Sep. 2, 2010), the Sixth Circuit Court of Appeals held that an employer may not deny an employee’s leave for a negative medical certification -- one that fails to support a requested leave --, if the employer has not properly triggered the employee’s duty to provide a medical certification under the Family and Medical Leave Act (“FMLA”) regulations. Deborah Branham (“Plaintiff”) was terminated from her position as a receptionist for The Dickson Herald, a newspaper owned by Gannett Satellite Information Network, Inc. (“Employer”), for her failure to follow Employer’s attendance policy. Specifically, Plaintiff called out from work for several days. After going to the doctor’s office, Plaintiff informed Employer that her physician had released her to return to work the following day. Additionally, Plaintiff’s physician faxed a completed medical certification form to Employer which indicated that she was able to perform all of her duties as of the return to work date and would not need intermittent leave. Plaintiff did not report to work on her return to work date. When Employer questioned Plaintiff’s absence beyond the date indicated on the medical certification, Plaintiff told Employer that the wrong doctor completed the medical certification and that her primary care physician could provide any needed clarification. When Employer tried to clarify Plaintiff’s absence with Plaintiff’s primary care physician, Employer was told by an employee at the physician’s office that Plaintiff’s primary care physician would not fill out a new medical certification form because Plaintiff’s primary care physician was not the doctor who had examined Plaintiff during her visit. However, the employee spoke with the doctor who had seen Plaintiff and confirmed that the information on the medical certification was accurate. Consequently, Employer made the decision to terminate Plaintiff’s employment. Shortly thereafter, Employer received a faxed medical certification that contradicted the prior medical certification from a nurse practitioner at the same office. Plaintiff filed suit alleging that her employer interfered with her use of FMLA and terminated her in retaliation for seeking FMLA. The district court granted Employer’s motion for summary judgment finding that while Plaintiff produced her second medical certification within the requisite period, the Employer was permitted to deny her leave based on an earlier “negative certification,” which indicated that Plaintiff was not incapacitated. The Sixth Circuit reversed the district court’s decision, holding, in part, that the Employer did not trigger Plaintiff’s duty to provide a medical certification. Notably, the Court did not decide whether an employer must wait the full fifteen days, the requisite time period to provide a medical certification under the FMLA regulations, before denying leave on the basis of a negative medical certification, which was an issue of first impression for the Court. However, the Court, instead, held that while Plaintiff had met her notification requirement for FMLA, Employer “never properly triggered” Plaintiff’s duty to provide a medical certification supporting her claim. Specifically, the Court found that although Plaintiff was required to fill out Employer’s short-term disability form, which was also used as its FMLA leave form, Employer failed to provide Plaintiff any information about the FMLA certification requirement or consequences for failing to return the certification. The Court also found that Employer failed to demonstrate that it made its request for the medical certification in writing or that if the request was made orally, that (1) Employer’s handbook or written policy provided that medical certification would be required and (2) Plaintiff requested FMLA leave six months prior and received written notice of the medical certification requirement for leave. Accordingly, Employer was not permitted to deny Plaintiff leave based on a negative certification when it never properly requested the certification or informed Plaintiff of the consequences for failing to provide such certification. Employers are reminded that a request for a medical certification should be made at the time an employee provides notice of the need for leave or within five business days thereafter. Any such request should be in writing and should explain the consequences for failure to provide a complete and sufficient certification. © 2010 Kiesewetter Wise Kaplan Prather, PLC |
