FMLA employee rights

Author: LegalEase Solutions

QUESTION(S) PRESENTED

  1. Summary of employee rights under FMLA
  2. Summary of available extension for providing additional requested information.
  3. When can an employer begin termination procedures for failure to provide additional requested documentation?
  4. When an employee on FMLA leave suffers from work-related stress, whether engaging in outside social activity justifies termination?

 SHORT ANSWER(S)

  1. An “eligible employee” for twelve (12) work weeks of unpaid leave in any 12-month period for an eligible employee to use for the birth or adoption of a child, his/her own “serious health condition” or the “serious health condition” of a family member. 29 U.S.C. § 2612(a)(1).
  1. The employer has the power to extend the 15-day certification period under 29 C.F.R. § 825.305(b). The employer also has the power to extend the 7-day period to cure the deficient or incomplete certifications under 29 C.F.R. § 825.305(c).
  1. An employer may begin termination procedure of the employee after 15-day period provided in the written notice requesting the employee to submit proof of the serious health condition and reminding that failure to do so will lead to termination.
  1. The fact that an employee is engaged in social activities could be a fact that would be found to be relevant to a determination of whether or not an employee is entitled to FMLA. In such circumstances, an employer may request the employee to provide additional documentation or recertification, including second-opinion, if employer doubts employee’s stated reason for absence or the validity of the certification. If such re certification is not timely provided, employer may terminate the employee.

RESEARCH FINDINGS

  1. Summary of employee rights under FMLA.

The FMLA entitles an “eligible employee” for twelve (12) work weeks of unpaid leave in any 12-month period for an eligible employee to use for the birth or adoption of a child, his/her own “serious health condition” or the “serious health condition” of a family member. 29 U.S.C. § 2612(a)(1). Further, FMLA is also applicable to any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on (or has been notified of an impending call to) “covered active duty” in the Armed Forces.

An “eligible employee” is one with at least one year of employment with the employer, and who worked a minimum of 1,250 hours during the twelve months prior to the first day requested for leave. Id. § 2611(2)(A); see 29 C.F.R. § 825.111. A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves . . .  inpatient care . . .  or . . . continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

Notably, “the FMLA does not entitle eligible employees to paid leave.” Glunt v. GES Exposition Servs. Inc., 123 F.Supp.2d 847, 870 (D.Md.2000). However, if the employer otherwise provides paid leave, either the employee or the employer can opt for substitution of paid leave pursuant to the employer’s applicable paid leave policy. 29 C.F.R. § 825.207. Importantly, the employer must continue to provide any group health care coverage that the employee received while working and it must restore the employee to his or her previous position or its equivalent upon his return. 29 U.S.C. § 2614(a)(1), (c)(1). Thus, use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.

An employee need not exhaust his leave entitlement in one block. The employee may take intermittent leave or work on a reduced leave schedule, when medically necessary. Id. § 2612(b)(1), (c). Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. 29 U.S.C. § 2612(e)(2).

Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s normal paid leave policies. 29 C.F.R. § 825.207.

FMLA makes it unlawful for any employer to:

  • “interfere with, restrain, or deny” the exercise of any right provided under FMLA; and,
  • “discharge” or “discriminate against any person for opposing any practice made unlawful by” FMLA or for involvement in any proceeding under or relating to FMLA.

29 U.S.C § 2615(a)(1) and (2).

  1. Summary of time period to comply with certification requirements and extensions for providing additional requested information.

“An employee is mandated to provide notice to her employer when she requires FMLA leave.” Rhoads v. F.D.I.C., 257 F.3d 373, 382 (4th Cir.2001); see also; 29 U.S.C. § 2612(e)(2); 29 C.F.R. §§ 825.302, 825.303. When an employee seeks to take FMLA leave due to a serious health condition, and the need for leave is foreseeable, the employee is required to:

make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer … and … shall provide the employer with not less than 30 days’ notice, … except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

29 U.S.C. § 2612(e)(2).

When such leave is not foreseeable, “an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303(a). The notice must contain “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(b). Such information “may include that a condition renders the employee unable to perform the functions of the job; . . . and the anticipated duration of the absence.” Id. In Rodriguez v. Smithfield Packing Co., Inc., 545 F.Supp.2d 508, 522 (D.Md.2008), the court held that “an employee must give . . . some level of detail regarding the nature of the illness and the likely duration of the absence such that the employer is able to reasonably conclude that the absence may qualify as FMLA leave.” Id. 522.

“Case law and federal regulations make it clear . . . that employees do not need to invoke the FMLA in order to benefit from its protections. The regulations do not require the employee to ‘expressly assert rights under the FMLA or even mention the FMLA. . . ’” Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir.2009) (quoting 29 C.F.R. § 825.302(c)).

An employee requesting a FMLA absence for the serious health condition of a family member or the employee’s own serious health condition shall be provide a certification as soon as a request for leave is submitted or within five business days. 29 U.S.C.A. § 2613 (c ); 29 C.F.R. § 825.305(b). When an employer may request certification at a later date, the employee must provide the requested certification to the employer within 15 calendar days after such request, unless it is not practicable. 29 C.F.R. § 825.305(b). The employer has the power to extend the 15-day certification period. Id. In cases, where the certification is incomplete or insufficient, the employer must provide seven-calendar days to cure the deficiencies. 29 C.F.R. § 825.305(c). However, the employer may extend the 7-day period when it is “not practicable under the particular circumstances despite the employee’s diligent good faith efforts” to cure such defects. Id.

Additionally, if an employer doubts the validity of a medical certification for FMLA leave request, the employer may require the employee to obtain additional information or see another physician for a second opinion. 29 U.S.C.A. § 2613(c); C.F.R. § 825.307(b) (1). Such, second or third medical opinion cost shall be borne by the employer. 29 U.S.C.A. § 2613 (c) and (d) (1); C.F.R. § 825.307(c). Pending receipt of the second opinion, the employee is provisionally entitled to the FMLA absence. If it is determined that the employee is not entitled to the requested FMLA leave, the employee’s absence shall be treated as paid or unpaid leave under the employer’s established leave policies. 29 C.F.R. § 825.307(b) (1).

Further, an employer may request recertification from an employee continuing supervision of a health care provider “no more often than every 30 days and only in connection with an absence by the employee.” 29 C.F.R. § 825.308(a).  However, recertification may be requested in less than 30days in the following circumstances: “if: (1) The employee requests an extension of leave; (2) Circumstances described by the previous certification have changed significantly . . . (3) The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.” 29 C.F.R. § 825.308(c).

In any situations in which recertification is allowed and requested, the employee must provide the requested recertification within the time frame requested, within 15 calendar days after the employer’s request, unless it is not practicable under the circumstances despite the employee’s diligent, good faith efforts. 29 C.F.R. § 825.308(d).

  1. When can an employer begin termination procedures for failure to provide additional requested documentation?

Generally when an employee fails to provide certification to an employer after an employer has requested such certification from the employee, an employee’s leave is not considered FMLA leave and employer may deal with employee pursuant to its ordinary policies and procedures with respect to unauthorized leave or absence.  The FMLA may require an employer in such a situation to provide an employee with an opportunity to cure a deficiency.   FMLA regulations state the consequences of failure to produce certifications requested by employer thus:

(d) Consequences. At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification. If the employee fails to provide the employer with a complete and sufficient certification, despite the opportunity to cure the certification as provided in paragraph (c) of this section, or fails to provide any certification, the employer may deny the taking of FMLA leave, in accordance with § 825.313. It is the employee’s responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee’s family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee’s FMLA request. This provision will apply in any case where an employer requests a certification permitted by these regulations, whether it is the initial certification, a recertification, a second or third opinion, or a fitness for duty certificate, including any clarifications necessary to determine if such certifications are authentic and sufficient. See §§ 825.306, 825.307, 825.308, and 825.312.

29 C.F.R. § 825.305(d).

In Miller v. AT & T Corp., 250 F.3d 820, (4th Cir. 2001), 4th circuit court held that “. . . to the extent it viewed Miller’s certification as incomplete, AT & T was required to provide Miller a reasonable opportunity to cure any deficiency. “Miller v. AT & T Corp., 250 F.3d 820, 836 (4th Cir. 2001)( citing 29 C.F.R. § 825.305(d) (2000)).

Consequently, 29 C.F.R. § 825.305(d) states that if an employee fails to provide certification in a timely manner as required by § 825.305(b), then an employer may deny FMLA coverage until the required certification is provided. However, the employer is imposed with a duty “to advise an employee of the anticipated consequences of the employee’s failure to provide adequate certification.” 29 C.F.R. § 825.305(d). If the certification is incomplete or insufficient, additional 7 day period may be provided to cure the defects. 29 C.F.R. § 825.305(c). This implies that employee’s failure to provide appropriate certification even after such notice and opportunity to cure defects, gives right to the employer to take steps for the employee’s termination per its ordinary policies and procedures.

  1. When an employee on FMLA leave suffers from work-related stress, whether engaging in outside social activity justifies termination?

To avail oneself of FMLA benefits, an employee’s work-related stress should be a “serious health condition” that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C.A. § 2612(a)(1)(D). FMLA defines ‘serious health condition’ as ‘an illness, injury, impairment, or physical or mental condition that involves (A) . . .; or (B) continuing treatment by a health care provider.’” Krenzke v. Alexandria Motor Cars, Inc., 289 Fed. Appx. 629, 633 (4th Cir. 2008) (quoting 29 U.S.C.A. § 2611(11). FMLA regulations more specifically state:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

….

(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.115 A(a), (c).“29 C.F.R. § 825.115 provides, inter alia, ‘[a]n employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.’” Krenzke v. Alexandria Motor Cars, Inc., 289 Fed. Appx. 629, 634 (4th Cir. 2008)(quoting  29 C.F.R. § 825.115). “Finally, ‘treatment’ is defined as ‘examinations to determine if a serious health condition exists and evaluations of the condition.’ Id. (quoting 29 C.F.R. § 825.114(b).

“However, the framework created by the FMLA and its accompanying regulations focus on the impact of the symptoms and the scope of the treatment, not just the diagnosis which is eventually made.” Krenzke, supra at 634 (4th Cir. 2008). Consequently, “there is no requirement in the [FMLA] that an employee be diagnosed with a serious health condition before becoming eligible for FMLA leave.” Greene v. YRC, Inc., 987 F. Supp. 2d 644, 651-652, 2013 WL 6537742 (D. Md. 2013). It only obliges a duty on employee to sufficiently demonstrate a “serious health condition” by providing adequate proof of “continuing treatment by a health care provider” under 29 C.F.R. § 825.114(a)(2)(i).

Even if an employee meets FMLA’s notice and certification requirements, an employee is not undisputedly entitled to leave, regardless of whether or not she suffers from a serious health condition; employee is required to prove that she was afflicted with an FMLA-qualifying condition. See Rhoads v. F.D.I.C., 257 F.3d 373, 384, 2001 WL 788973 (4th Cir. 2001).

If an employer doubts the validity of a medical certification for FMLA leave request, the employer may require the employee to obtain additional information or see another physician for a second opinion. 29 U.S.C.A. § 2613(c); C.F.R. § 825.307(b) (1).

Additionally, 29 C.F.R. § 825.308(c)(3), gives the following example that warrants request for recertification in less than 30 days as :

(3) The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. For example, if an employee is on FMLA leave for four weeks due to the employee’s knee surgery, including recuperation, and the employee plays in company softball league games during the employee’s third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the employer to request a recertification in less than 30 days.

29 C.F.R. § 825.308(c)(3).

In the present situation, the employee is claiming FMLA entitlement due to stress and anxiety, but is found to engage in non-work related social activities. The fact that an employee is engaged in social activities could be a fact that would be found to be relevant to a determination of whether or not an employee is entitled to FMLA. From the example stated in 29 C.F.R. § 825.308(c)(3), it may be argued that an employer has reasonable cause to doubt employee’s stated reason for absence or the validity of the certification. The employer may require the employee to provide for additional documents or recertification.

CONCLUSION(S)

When an employee seeks FMLA leave due to stress and anxiety is found to be engaged in non-work related social activities, the employer may reasonable doubt the genuineness of the request. In such circumstances, the employer may request additional documents or re certification in writing. 29 C.F.R. § 825.302(c). Such notice should advise an employee of the anticipated consequences of the employee’s failure to provide adequate certification. If the employee fails to timely submit the re certification, even after employer has provided employee with an opportunity to cure any defects, the employer may proceed with termination of the employee pursuant to its policies and procedures.