Employee's Lack Of Diligence In Obtaining Timely Medical Certification Destroys Her FMLA Claim

by Franczek Radelet P.C.
Contact

http://www.fmlainsights.com/giddy.jpgAs a management side attorney, I love when an employer prevails in an FMLA case.  However, I'm doubly giddy when the case provides real, practical takeaways for employers that help them better administer FMLA leave.  Yesterday was one of those giddier days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith effort to turn the certification in on time.  In its decision, the court explained for employers the various ways the employee could have shown that she was attempting in good faith to return medical certification. 

The Facts

Ronita Brookins was employed by Staples Contract & Commercial, Inc. to review customer orders for credit card fraud.  Sadly, she also grappled with breast cancer.  She beat the cancer the first time, but it returned several years later.  During this later period, Brookins had a serious of suspect, unexcused absences that put her on the verge of termination.  When Staples called the attendance problems to Brookins' attention, she informed the Company for the first time about the recurrence of the cancer and insisted that many of the absences were related to her treatment.  Giving her the benefit of the doubt, Staples asked Brookins to provide medical certification, which was due back to Staples with 15 calendar days.

When Brookins didn't return the certification on time, Staples gave her another seven days.  And another extension after that.  About one month after Brookins should have returned the certification, Staples decided to convert her absences to unexcused leave and, as a result, it terminated her employment.  Brookins later filed FMLA interference and retaliation claims.

The Ruling & Insights for Employers

Under the FMLA regulations, employers have the right to request and obtain complete and sufficient medical certification to support an absence due to an employee's alleged serious health condition.  The employee's obligation to return this medical certification is fairly clear:

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  29 C.F.R. § 825.305(b)

If the employee does not provide certification, the FMLA regulations allow the employer to deny FMLA coverage to the employee until the certification is provided.  Thus, any absences in the interim are unexcused and could subject the employee to termination.

Here, Brookins blew the 15 day turnaround.  So, she could save her FMLA claim only if she could establish that she was engaging in diligent, good faith efforts to return the certification on time.

Employers regularly ask me -- what precisely are diligent, good faith efforts?  Let's start with what Brookins did here to obtain certification: she called her two primary physicians and asked them to complete the certification.  When they flat out refused to complete the form, Brookins did nothing further to obtain certification.  Literally nothing.  Nada.  This was hardly impressive to the court.

The Brookins court suggests what the employee could have done to show that she was engaging in diligent, good faith efforts to obtain complete and sufficient certification:

  • When Brookins initially was rebuffed by these two physicians, she could have contacted them again, explaining the importance of completing the certification.
  • She could have asked any one of three other additional specialists she visited with during her treatment to complete the form.
  • She could have mailed the form to any of these doctors.
  • She could have delivered the form in person to any of these doctors.
  • Perhaps most significant to the court: she should have contacted her employer to explain her difficulties in obtaining timely certification and requested an extension before the 15-day deadline expired.  (In her case, she didn't seek an extension until after the deadline passed.)

Because the court found that Brookins did not make diligent efforts to obtain certification, it dismissed her FMLA claims, finding that the exception to the 15-day rule did not apply.  More importantly, the ruling gave employers a guide map when determining whether their own employee has engaged in "diligent, good faith efforts" to obtain certification.  Brookins v. Staples Contract & Commercial, Inc. (pdf)

Cheesy moment alert:  I must confess a moment of weakness here -- perhaps it's my Catholic guilt setting in a bit on Ash Wednesday, but I can't help but feel a bit for Ms. Brookins' situation, since it appears as though her primary care doctors' refusal to complete the form is what likely did her in.  As she battled breast cancer for a second time and now was rebuffed by her two main doctors, obtaining medical certification had to be a low priority for her.  Nevertheless, the FMLA rules apply to Brookins just as they do any other employee in far less empathetic situations. 

And Brookins didn't follow the rules.  As harsh as it may seem to some, it's the correct ruling. 

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!