Five Days Not Considered Reasonable Time to Correct FMLA Medical Certification
While an employer may require an employee to provide a completed medical certification before granting leave under the FMLA, the employer also must give the employee a reasonable opportunity to correct the certification the employer contends is incomplete. Wellman v. Sutphen Corp, 2010 WL 1644018 (S.D. Ohio April 23, 2010). The Court found that five days to cure was insufficient and permitted the employee to proceed on his claims that his employer interfered with his right to medical leave the FMLA.
Mr. Wellman worked at Sutphen for six years before his firing. He was diagnosed with arthritis in his hands and wrists and, in March 2006, inquired about his eligibility for upcoming absences relating to his medical condition. On March 9, 2006, Mr. Wellman’s supervisor gave him four FMLA documents to be completed, including a blank certification of health care provider. Sutphen did not provide Wellman with an instruction sheet and none of the forms stated a return deadline. Sutphen contended that Mr. Wellman never returned the certification. Wellman claimed that he returned the completed Certification on March 22, 2006, his first day back to work after his March 20 doctor appointment. More than two months later, Mr. Wellman received a letter from Sutphen notifying him that Sutphen had not received the completed certification and that he had five days to complete and return it. That same day, Wellman also received a written warning for insubordination for failing to complete and return the FMLA forms.
Pursuant to Section 825.305(b) of the FMLA regulations, when leave is foreseeable, an employee must provide the employer with medical certification at least 30 days prior to the scheduled absence. When this is not possible, the employee must provide the requested certification within the time frame requested (which must allow at least 15 days after the employer’s request), unless it is not practicable under the circumstances. Section 825.305(d) provides that if the employer views a certification provided by an employee as “incomplete,” the employer must advise the employee of this belief and provide the employee a “reasonable opportunity” to cure any deficiency.
Sutphen maintained that the case should be thrown out, even if Mr. Wellman submitted the certification, because he failed to cure an alleged defect or “incompleteness” in that certification. Sutphen argued that the certification Mr. Wellman claimed he submitted “must be deemed incomplete” within the meaning of 825.305(d) because Sutphen had no relevant information regarding Mr. Wellman’s condition or need for leave in its possession. The Court specifically found that if the employer contends that it never received the certification, it cannot rely upon the regulations relating to an “incomplete” certification within the meaning of subsection 825.305(d).
The Court noted that even if it found that the employee had submitted an “incomplete” certification, Sutphen failed to satisfy its obligation to provide the employee with a reasonable opportunity to cure by giving Mr. Wellman only five days to submit the required information. Mr. Wellman had asked Sutphen to clarify exactly what additional information it required and to extend the submission deadline, but his requests went unanswered.
This case underscores the importance of giving employees adequate time to supplement any incomplete or unsatisfactory medical certification information, under all federal, state, and local leave laws.
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Author
Diane Gianos
Chicago, Illinois
312.832.5158
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