As 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.
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.