Can you rely on an employee’s FMLA submission? Not if you want to deny the FMLA leave!

This lesson was learned the hard way by the Lehigh Valley Health Network (“Lehigh”). Lehigh had an employee who submitted a medical certification requesting Family Medical Leave Act (FMLA) leave. The employer denied the leave because the certification did not identify a serious health condition.

Shortly thereafter, the employee was fired for excessive absences. The employee was not diagnosed with a qualifying serious medical condition until about 1 week after she was fired.

The employee sued, claiming that Lehigh interfered with her FMLA claim when it did not identify the problem with the certification and allow her an opportunity to fix it. She also claimed that the employer retaliated against her because it fired her for trying to exercise her right to FMLA leave.

The lower court agreed with the employer, but on appeal the employee’s claim was given new life. Why? If an employee submits a medical certification in support of an FMLA request, but the certification is not sufficient—the regulations require that the employer cannot deny the leave unless the employee is given 7 calendar days to cure the alleged deficiency.

The employer in this case did not offer the chance to fix the problem because they read the certification as “negative” – no serious medical condition was identified, so the employer assumed there was no entitlement to leave and no fix was possible. The 3rd Circuit (Deleware, New Jersey and Pennsylvania) dismissed this approach – there are no “negative” certifications, only insufficient certifications.

Lesson learned employers – if you are going to deny FMLA leave, it almost always makes sense to first identify the reason for the denial and give the employee 7 days to cure the problem.

Contact info: Meredith S. Campbell Co-Chair, Employment and Labor Group, Shulman Rogers [email protected] | T 301.255.0550 | F 301.230.2891