FMLA Leave Properly Denied for Incapacity with Unknown Duration


By Roger S. Achille May 16, 2018

A former employee who reported the duration of his medical condition as "not determined" upon his application for leave under the Family and Medical Leave Act (FMLA) was properly denied leave and consequently terminated.

During the 13 years the plaintiff worked for the defendants, he received numerous accolades for his work performance. On Feb. 1, 2016, the plaintiff received approval from the defendants for intermittent FMLA leave for a period of one year. During that time the plaintiff could utilize leave up to two times per month.

The plaintiff alleged that at or near the time he was granted FMLA leave, he was demoted when his position changed from security director to security coordinator. According to the plaintiff, this alleged demotion was in retaliation for his seeking FMLA leave and resulted in a reduction of compensation and the elimination of overtime pay.

On May 5, 2016, the plaintiff applied for additional FMLA leave for a separate health condition. A practitioner of internal medicine employed by the defendants completed the plaintiff's physical examination and the health care provider certification needed for the plaintiff's application for additional FMLA leave.

The certification indicated that the condition began May 1, 2016; that its probable duration was "ongoing"; and that the estimated end date was "not determined."

On May 9, 2016, the defendants notified the plaintiff that his request was not approved because two items were missing from the certification: a possible ending date for the period of the plaintiff's incapacity and information concerning the type of health care provider to whom the plaintiff had been referred.

The plaintiff was further informed that his absence from April 25 to May 4, 2016, was unauthorized sick leave and that documentation was needed to show that his absences for those dates were medically necessary. The plaintiff did not provide the requested information but furnished another copy of the certification that he had submitted May 5. On May 16, 2016, the defendants denied the plaintiff's application for additional FMLA leave and terminated his employment for being on unauthorized leave since April 25, 2016. The plaintiff filed a complaint against the defendants asserting FMLA interference and FMLA retaliation.

[SHRM members-only toolkit: Managing Family and Medical Leave]

An employee seeking FMLA leave must provide sufficient notice to reasonably apprise the employer of his or her request to take leave under the FMLA. An employer may require that the employee support the request with a certification issued by the employee's health care provider.

A sufficient certification contains, among other things, the date on which the serious health condition began and the probable duration of the condition.

"A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or nonresponsive," according to the FMLA. If the deficiencies are not cured in the resubmitted certification, the employer may deny the request for leave.

The plaintiff failed to properly respond when the defendants asked him to provide a possible ending date within seven calendar days. The plaintiff maintained that the certification he provided with his May 5, 2016, application for FMLA leave indicated that the ending date for his period of incapacity was not determined.

He claimed that the defendants were prohibited under the FMLA from requesting follow-up information, but the court noted that the plaintiff cited no authority for this proposition and remarked that his argument was "clearly at odds with the plain text" of regulations. Accordingly, the court dismissed the plaintiff's FMLA interference claim.

Furthermore, since the plaintiff failed to provide the defendants with adequate notice under the FMLA, the "plaintiff did not enjoy FMLA protection and could not avail himself of the rights that flow from the FMLA, a necessary element of a retaliation claim."

Horsting v. St. John's Riverside Hospital, S.D.N.Y, No. 17-CV-3230 (Apr.18, 2018).

Professional Pointer: An employer who finds a certification incomplete or insufficient should send a written request to the employee for the additional information necessary to make the certification complete and sufficient.

Roger S. Achille is an attorney and professor at Johnson & Wales University in Providence, R.I.


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