by Lana L. Rupprecht, Esq. - Director Product Compliance
& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
May 24, 2022
Employers often receive medical documentation from an employee to support an FMLA request, but no certification. What should an employer do in that situation?
Consider the following scenario.
Jake and Zyloc *
Jake (a fictional character) worked for Zyloc (a fictional company) as a financial analyst.
On May 11, Jake was in a car accident and as a result, he developed severe back and neck pain. For purposes of this scenario, let’s agree this would be considered a serious health condition as defined by the FMLA.
Jake requested FMLA on May 15. Zyloc sent all required FMLA notices and in doing so, required that Jake return a certification completed by his medical provider by June 7.
Over the period between May 15 through June 7, Jake did not submit a completed certification, or any certification at all. Instead, Jake sent Zyloc multiple copies of his voluminous medical records—dozens of pages. This included a “work status report” stating he could not work until July 30.
Zyloc repeatedly reminded Jake that it needed the completed certification, not just the medical records. But in response, Jake would simply resend the hundreds of pages of the same prior medical records and the same work status report.
Zyloc extended the June 7 deadline for Jake to return the certification to June 15 and again, informed Jake in writing and in oral communications that the medical records were not a substitute for the certification and that a completed certification must be provided by the deadline. Although Jake stated he would send the certification, he never did.
On July 20, Zyloc denied Jake’s FMLA and terminated Jake’s employment due to his unexcused absences.
Jake brings a lawsuit for FMLA interference. Does Zyloc have a good defense?
What the FMLA Regulations Say
First, let’s look at the FMLA regulations. If an employer requires a certification, the employee must provide the completed certification within 15 calendar days after the employer’s request. More than 15 days is permissible if: 1) the employer allows it; or 2) it is “not practicable under the particular circumstances” to return the certification within that time despite the employee’s “diligent, good faith efforts.” 29 C.F.R. § 825.305(b)
Employers must also notify the employee of the consequences for not returning the FMLA certification, which may include denial or delay of FMLA.
But the regulations provide that it is the employee's responsibility to provide the certification. If the employee never returns a certification, the leave is not FMLA-protected leave. 29 C.F.R. § 825.313(b).
Application to the Jake and Zyloc Scenario
Based upon the scenario described above, Zyloc is in a good position.
First, Zyloc provided the proper notices to Jake and initially gave him more than 15 days to return the certification. When it got the medical records, Zyloc informed Jake that the medical records were insufficient; it needed a certification.
Then, Zyloc then gave Jake an extension of time to submit the certification. When that deadline passed, Zyloc even waited a few days after the extended deadline passed before denying the leave.
But what about Jake’s submission of the multiple pages of medical records? Will a court find Zyloc’s objection to Jake’s presentation of the medical records instead of the completed certification to be “form over substance” and side with Jake? Probably not. In a similar situation, a court dismissed the case, stating with respect to the medical records: “Plaintiff’s position that he could simply foist a stack of documents onto the Defendant and expect Defendant to pick through the medical records and piece together the information needed to fulfill FMLA’s certification requirements is insufficient for this purpose and fails to meet the requirements of the FMLA regulations.”
Although employers cannot insist on a particular certification form and must accept a complete and sufficient medical certification regardless of the format, Jake, in this case, never provided a certification in any form with the required information.
Even though Zyloc initially provided Jake over 15 days to return the certification, Zyloc extended the deadline for the certification twice and repeatedly informed Jake (hopefully in writing as well as via phone) that the medical records were not a substitute for the certification. Also, Jake said he would send the certification but did not.
Pings for Employers
- Communicate frequently and clearly: If necessary, inform employees repeatedly that they must provide a completed certification or leave will be denied. Doing so gives the employer a solid defense if the employee fails to meet his/her statutory obligations.
- If an employee returns a certification late, ask the employee to explain why it was late and consider whether extenuating circumstances justify the delay.
- Although not required, consider giving an employee at least one extension or a grace period after the 15 days expire. Courts and juries tend to have less sympathy for employees who failed to meet the extended deadline.
- What if your employee submits more succinct medical records than the hundreds of pages Jake provided? You might consider accepting those records in lieu of a medical certification. An employer always has the ability to waive the certification requirement. But before you do that:
- Carefully analyze whether the records contain all the information you are entitled to under the FMLA. Even extensive medical records might not address, for example, the frequency and duration of intermittent absences, the duration for a continuous leave, or the essential functions of the position the employee cannot perform (helpful with return to work efforts and ADA compliance!). Once a leave is approved, you are stuck with the information in the medical records standing in the place of a certification, and management of the leave might be difficult if challenges arise.
- Recognize that you are setting a precedent and other employees might claim discrimination if not allowed to simply dump medical records on you.
- Remember that the medical records might contain medical information not related to the reason for the FMLA leave request. Possession of such information is dangerous and you are better off returning the records without reviewing them or having them anywhere in the employee’s file.
Always consult with your employment law attorney before terminating an employee in these situations. The particular facts are important to determining the correct action.
Matrix Can Help!
Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services which will help insulate employers receiving the type of “medical records dump” described above. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].
*The Jake and Zyloc Scenario above, is based, in part, upon Kuramoto v. Heart and Vascular Center of Arizona, PC, 2021 WL 2012668 (D. Ariz. 2021).