The 6th U.S. Circuit Court of Appeals has held that an employer must wait until the expiration of the medical certification period in order to deny FMLA leave to an employee. Branham v. Gannett Satellite Information Network, Inc., 6th Cir., No. 09-6149, September 2, 2010.
Deborah Branham filed suit against her employer, The Dickson Herald, a newspaper owned by the Gannett Satellite Information Network, Inc. (“Gannett”), after she was terminated for failure to follow the company’s attendance policy. On November 6 and 7, 2007, Branham was absent from work because her son was ill. On November 8, Branham called the paper’s office manager (Buhler) to say that she (Branham) was sick and would be absent that day. She did the same on November 9. On Monday, November 13, Branham’s husband called Buhler to say that he was taking Branham to see a doctor (“Dr. Singer”). At her appointment with Dr. Singer on that day, Branham reported herself to be suffering from “migraine headaches, menstrual problems, depression, insomnia, and a stomach virus.” However, Dr. Singer released Branham to return to work on November 14, and Branham called to let Buhler know that. Buhler then asked Branham to come in to fill out paperwork for short term disability leave. However, Branham did not return to work on November 14 even though she was release to return that day, nor did return at any point after that. She did, however, fax a medical certification noting her return to work date as November 14.
When Branham had not returned to work by November 20, Buhler called Branham to say that her job would be in jeopardy unless she could produce documents that confirmed her need to be off work. Branham informed Buhler that the wrong doctor had completed the November 14 certification, and that she would provide additional clarification from her primary care physician. However, when no such information was received by Gannett by November 24, the company made the decision to terminate Branham’s employment. A termination letter dated November 24, 2006, was sent to Branham by registered mail on Tuesday, November 28; Branham was contacted by phone on that same day to inform her of the firing. That same evening, Gannett received a faxed certification form signed by a nurse practitioner (Seefeldt) which stated that Branham would not return to work until January 1, 2007.
Branham ultimately filed a complaint in federal court alleging that Gannett violated the FMLA by interfering with her use of FMLA and by firing her in retaliation for seeking FMLA leave. The district court granted summary judgment to Gannett. The court found that an employer must allow an employee 15 days within which to provide medical certification in support of a leave request under the FMLA; the court further acknowledged that Branham provided a supporting certification on the 15th day after Branham’s husband reported that she was sick and planned to see a doctor, but that Branham had been fired prior to the expiration of that 15-day certification period. However, the lower court found that Gannett was entitled to fire Branham on the 11th day of the certification period, once the company had received a “negative certification” from Dr. Singer, allowing Branham to return to work.
The Sixth Circuit reversed the summary judgment for Gannett, finding that Branham was able to show that she was entitled to FMLA leave. The Sixth Circuit found –in a case of first impression for that court – that an employee is entitled to the full 15-day certification period in order to provide a medical certification supporting the need for FMLA leave. That means that even though Gannett had received information from Dr. Singer that Branham’s medical condition did not support the need for leave, Branham was entitled to a full 15 days to seek a certification that actually supported that leave.
In most employment-related lawsuits, the judge is the “trier of the law” and the jury is the “trier of the facts.” A successful motion for summary judgment can mean the dismissal of a plaintiff’s lawsuit on a matter of law. However, the denial of such motion – as in this case – simply means that a court has found a “disputed material fact” which requires review and decision by the jury. Here, the Sixth Circuit determined that the difference in the two certifications – the immediate return to work from Dr. Singer, and Nurse Practitioner Seefeldt’s certification of Branham’s ongoing incapacity – was “the essence of a factual dispute that precludes summary judgment.” By not waiting for the entire certification period to expire, Gannett set the stage for this lawsuit, which occurred when the company assumed that the first certification was the only paperwork that they would receive within the allowable 15 day response period. Although neither the FMLA nor its supporting regulations specifically instruct an employer to wait until the full expiration of the 15 day certification period, this case is an example of the result of failing to do so.
Importantly, the Sixth Circuit also found that Gannett was not entitled to delay or deny FMLA leave to Branham, because there was no evidence that the company formally requested the medical certification in accordance with the FMLA regulations. In fact, the evidence showed that Gannett failed to make a proper request for the information. The company’s short term disability form doubled as its FMLA leave form, and failed to include information (required by the FMLA regs) about FMLA certification or the consequences of returning the certification in a timely manner. Therefore, a reasonable jury might find that the 15 day certification period was never triggered.
This case is an example of the administrative complexities of the FMLA, and the resulting confusion when an employer is not fully compliant with the law and its regulations. Thorough training of HR and management is critical for full compliance with the Act.