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.

Firing an Employee on His Return from FMLA Leave

As lawyers, we sometimes have a non-practical view of the workplace. For example, to us the FMLA is about "leave" when in reality, the more fundamental point of the FMLA is to project the employee's job when the need for leave ends. The right to medical leave would be worthless without the right to reinstatement, a point the Sixth Circuit made last August.

A court of appeals decision last week, however, addressed a situation where the employer discovered performance problems while the employee is on FMLA leave. Mr. Cracco worked as a Service Center Manager for Vitran Express, a trucking company, at one of its Illinois terminals. He took approved leave for a medical condition and Vitran hired "several replacements" to cover his job while he was gone. The replacements discovered numerous problems, disorganization, not following of procedures, freight sitting on the dock, damaged fright hidden, safety concerns, customers complaining, overtime not being handled properly, and discrepancies in freight records. Based on these reports, the company launched an investigation, determining that Cracco had not simply made mistakes but had engaged in "deliberate attempts to disguise late and damaged deliveries." For that reason, Vitran then fired Cracco the day he returned from FMLA leave.

Cracco sued, claiming retaliation and interference under the FMLA. The court rejected all of his arguments. On the retaliation claim, the court held that the FMLA did not per se prohibit an employer from terminating an employee because, while the employee was on leave, the employer learned of misconduct. Notice the "but for" connection here. If the employee had not gone on medical leave, the employer might never have learned of the faked records. But that is not enough in itself to show legal causation under the FMLA.

Cracco's FMLA inference claim foundered because of that portion of the FMLA which provides that an employee's right to reinstatement is not absolute and the employee is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 2614(a)(3)(B). So, an employee is not entitled to reinstatement if the employer can "present evidence to show that the employee would not have been entitled to his position even if he had not taken leave." Now here is the important point about Cracco v. Vitran.

Vitran presented "substantial evidence" that Cracco had faked records, of its investigation and how it learned of the misconduct in the first place. In contrast, the employee presented "no evidence" that the reports were not made or that Vitran's investigation was not an honest attempt to ascertain the accuracy of the allegations.

There's no question that an employer may take employment action against an employee for what the employer discovers while the employee is on FMLA leave. The real issue is what is behind the discovery. Honest investigations, as I have stressed elsewhere, are the key. Even on the interference claim, the issue in this case wasn't whether or not the misfeasance had occurred but whether or not the employer honestly believed it occurred. The employer showed this by conducting a thorough investigation – though oddly enough, the court never mentioned whether or not the employee had been interviewed as part of the investigation. (There would have been good reasons for not interviewing the employee: he was on medical leave and the performance issues were self-evidence in the delivery records). There was also a lack of evidence regarding how the employer had treated similarly situated employees and this evidence can be quite crucial in any discrimination lawsuit.

A word to the wise. Because the taking of FMLA leave is itself protected, the timing of any employment action is going to look bad so a smart employer will be extra-careful in documenting the investigation, the basis for the decision and whether any other remotely similar incidents are distinguishable or not.