Employee's Failure to Recertify Prior FMLA Leave Justifies Discharge

A custodian for Drexel University failed to submit a Family and Medical Leave Act (FMLA) medical certification for her leave months after she completed it, rendering her ineligible for the leave and justifying her discharge the following year, the 3rd U.S. Circuit Court of Appeals ruled.

The plaintiff was employed as a custodian at Drexel University in Philadelphia, Pa. In May 2016, she was diagnosed with leiomyoma, a condition characterized by anemia and painful uterine fibroids. She advised Drexel's director of custodial and support services that she needed to take some time off from work to care for her health. The director told the plaintiff that she could apply for FMLA leave and directed her to contact HR for more information.

The plaintiff did not have any further conversations with the director about her medical issues but later said she believed he probably would have helped if she had requested additional help. Instead, she hid her medical condition and did not let anyone else know about her condition.

The plaintiff eventually spoke with HR and sought FMLA leave for the first time in June 2016. She had her physician properly complete the required medical certification and submitted it to Drexel's designated insurance carrier for handling FMLA requests, Guardian Life Insurance Co. Guardian granted the request by letter dated Aug. 11, 2016, and the plaintiff sought an extension through Oct. 17, 2016.

The plaintiff then had difficulty with her FMLA requests. She requested further leave from Oct. 18 to Nov. 30, and Guardian sent her a letter stating that she was eligible—but not approved—for a further extension for that period. It said that further information or certification was required and enclosed a blank medical certification form to be completed. When Guardian did not receive the completed form, it mailed the plaintiff a letter on Nov. 9 stating that her FMLA leave request for Oct. 18 through Nov. 30 was denied. However, the plaintiff continued taking the leave.

The plaintiff then requested FMLA leave from Dec. 1, 2016, through May 31, 2017. On Jan. 11, 2017, Guardian notified her that she was eligible for FMLA leave for that period but did not enclose a blank medical recertification form or tell her that she must submit a completed one. On Jan. 31, Guardian sent her a letter denying her request for failure to return a recertification. On Feb. 10, the plaintiff's physician submitted a certification form for the leave, but it was incomplete.

On Feb. 28, Guardian sent the plaintiff a letter advising her that the certification was incomplete and enclosed a blank certification form instructing her to fill it out, taking care to include the data listed as incomplete and asking her to return it within seven days. She did not do so. On March 13, Guardian notified her that it had not received a fully completed recertification form and thus the leave was denied. However, the plaintiff continued to take the leave.

On May 18, 2017, the plaintiff had a new doctor submit a recertification form that was correctly filled out, and Guardian approved her request for FMLA leave from May 18 to May 31, 2017. In late 2017, the plaintiff was notified that she was fired. She sued, alleging claims for interference with FMLA rights, failure to reinstate her under the FMLA, and for failure to accommodate and disability discrimination under the Americans with Disabilities Act and Pennsylvania law.

The district court granted Drexel's motion for summary judgment, finding that Drexel provided adequate notice of the certification requirements and did not interfere with the plaintiff's FMLA rights. The plaintiff appealed to the 3rd Circuit.

On appeal, the 3rd Circuit found that the plaintiff had to demonstrate that she was entitled to FMLA leave, which meant she had to adhere to the U.S. Department of Labor's (DOL's) regulations. Drexel's FMLA policy stated that she needed to provide the requested medical certification, and she did not do so in November 2016, nor from Dec. 1, 2016, to May 17, 2017.

While Drexel's letter on Jan. 11, 2017, did not include a blank recertification form as required by DOL regulations, Drexel remedied that error on Feb. 28, 2017, when it included the form.

Finally, the plaintiff could not show a failure to accommodate her disability because she did not reveal it to her supervisor and others. Thus, the 3rd Circuit upheld the dismissal of her claims.

Watson v. Drexel University, 3rd Cir., No. 20-3001 (Sept. 27, 2021).

Professional Pointer: As this case shows, an employer can preserve its objections to an employee's failure to follow FMLA procedures, even if the employee follows the procedures for a later request.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.