What is the employer’s obligation when presented with a medical certification in support of a request for FMLA if it is found to be “insufficient” rather than “negative on its face”. . . and what is the difference between those two categories? In a recent case, a federal appeals court found that a medical certification was “insufficient,” and the employee should have been given an opportunity to cure it, rather than “negative on its face,” which would have doomed the employee’s request for FMLA.
In Hansler v. Lehigh Valley Hospital Network, the employee began experiencing certain symptoms including nausea, shortness of breath, and vomiting. A medical certification was submitted which suggested intermittent leave twice a week for a duration of about a month. After several absences, the employee was fired. When she asked about her FMLA request, she was informed that it had been denied. After her termination, she saw, for the first time, a letter which indicated that her leave was denied because her condition did not qualify as a serious health condition under the FMLA.
The trial court dismissed the employee’s lawsuit, claiming that her medical certification was “negative on its face” because it indicated that her condition would last only one month, but the FMLA requires that a chronic serious health condition persist for an “extended period of time.” The trial court also rejected the employee’s argument that she should have had the opportunity to cure her insufficient medical certification.
The circuit court disagreed. The circuit court found that the certification submitted by the employee was merely “insufficient” because it was “vague, ambiguous, or non-responsive” rather than a “negative” certification. The court pointed out that a “negative” certification indicates that an employee can perform his or her job and thus does not need any leave. The court determined that the “negative” certification theory was not applicable here because the medical certification affirmatively stated that the employee needed intermittent leave.
Under the Department of Labor regulations, the employer is required to notify an employee when a medical certification is incomplete or insufficient and must advise them in writing what additional information is necessary. It must provide the employee with seven calendar days (unless not practical) to cure any deficiency. Accordingly, the circuit court concluded that upon receipt of the employee’s insufficient certification, the employer was required to (1) advise the employee that her certification was insufficient, (2) state in writing that additional information was necessary to make it sufficient, and (3) provide the employee with an opportunity to cure before denying her request for leave.
The finding in Hansler is a good reminder to employers of the process involved in handling an insufficient medical certification. Unless that certification clearly states, on its face, that the employee can perform the essential functions of their job and is ineligible for leave, the most appropriate course of conduct is for the employer to advise the employee what is necessary to make the certification complete and sufficient. It should do so in writing and provide the employee with seven calendar days to cure the deficiency. Further, if leave is denied on the basis of the medical certification, either as initially submitted or as amended, the employee should be immediately informed of such denial so he or she will understand their legal obligations and rights under the FMLA.