FMLA - Court Holds Requiring Employee to Return a Doctor's Note Doesn't Violate FMLA

Wow, a month without a post. Sorry about that. Its a combination of being busy and something of a summer lull in employment law developments.

Today, however, the Sixth Circuit made a point in an FMLA decision that bears comment.

The employee told his employer he wanted to take a personal day and when that request was denied, demanded to be permitted a day of FMLA leave. The employer told the employee (according to the court) that "he would incur an attendance 'occurrence' if he did not come to work." The employer also explained, however, that the employee "would receive a violation only if he did not produce a doctor’s note explaining his absence." As the court explained it, "that statement’s logical implication is that Anderson would not incur a violation if he did produce a doctor’s note."

The employee, however, chose to work the day he wanted off because he thought he had accumulated too many unexcused absences and would be fired at the next one. He brought in a physician's note after the fact.

The employer's demand for medical proof was perfectly fine, even if not phrased in the best matter, because the "request for a doctor’s note was within an employer’s right “to determine whether [the] absence [was] potentially FMLA-qualifying.” 29 C.F.R. § 825.303(b). The employee, who had diverticulitis over two years before the incident, could have submitted FMLA certification but didn't.

(Shortly afterward, the employer fired the employee for an altercation. The employer prevailed on that claim as well.)

The point is rather simple. There's no question that an employer has the right to require some type of medical justification for any FMLA absence. The issue here was whether the employer did something improper by implying that the absence would be unexcused if the employee failed to submit a medical justification.

But explaining what might happen if certification is not provided isn't just a good practice, one that saved this employer from an FMLA interference claim, it is mandated by the FMLA regulations. Under 29 C.F.R. 825.305(d), when the employer requests certification from the employee, "the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification."

Medical justification is, of course, different from requiring adequate notice of the need for FMLA leave. The employee here had given ample notice about the need for leave, even accusing the employer of violating the FMLA by refusing his leave request. The employer stuck to its guns, rightly so, and insisted on receiving adequate medical justification.

Employers May Not Retaliate Against Employees Who Take FMLA Leave

This won't be earth-shattering. It will eliminate any doubts (that most employers didn't have in the first place).

A Dollar General store in Tennessee fired a computer programmer who had a serious health condition. The project on which she was working was behind schedule and missing deadlines. Shortly after she requested FMLA leave, Dollar General began imposing discipline on her. A few weeks later, she was fired. She said at trial that when she was terminated, a supervisor told her "because of your health, I don't think you can do the job." The jury found Dollar General had fired the employee because she took FMLA leave.

On appeal, Dollar General argued that the FMLA does not prohibit employers from terminating employees who have taken FMLA leave. Read literally, Dollar General was correct. The relevant statutory language simplys says that it is unlawful to discriminate against someone "for
for opposing any practice made unlawful by this subchapter." An individual who requests FMLA leave exercises her rights under the FMLA but doesn't necessarily do so by saying the employer is engaging in an "unlawful" practice. Of course, the DOL FMLA regulations say: "employers cannot use the taking of FMLA leave as a negative factor in employment actions" but regulations cannot increase the rights that Congress chose not to add.

The problem is, as the court recognized, that the right to take FMLA would be all but meaningless if an employer could use that leave against the employee. Courts have, moreover, been willing to imply a retaliation prohibition even where the statute does not expressly prohibit retaliation, as I explained in a prior post. It is hardly surprising, therefore, for the Sixth Circuit to read the FMLA as protecting employees because they had exercised FMLA rights. (Given these other decisions, I find some of the Sixth Circuit's reasoning unnecessary but I can't quibble with the results.)

The decision isn't going to come as a shock to most employers in Tennessee. Still, there is merit to reminding Tennessee employers that they should exercise caution and use some common sense when imposing discipline on employees who have taken FMLA leave.