Reprinted from the February 15, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

FMLA Certification Clarification

You can’t always take an employee’s medical documentation at face value. Just because a note is unclear or incomplete doesn’t mean that the employee is not eligible for leave under the Family and Medical Leave Act (FMLA).

PAPER CHASE
Eric Speakman was skating on thin ice. Company policy allowed management to terminate any employee who incurred three disciplinary strikes within a 12-month period. He already had two strikes. A bout of new year’s bronchitis forced him to miss three days of work, which dropped him below the company’s minimum acceptable attendance rate — potential strike three.

“Eric, you were out on January 2, 3, and 4. Your doctor’s note is dated the second and says you may return on the third,” manager Jonas Eckles said, scratching his head. “You may qualify for FMLA leave so I’m going to give you a certification form for your doctor to fill out.”

“I already have a follow-up appointment scheduled for tomorrow, so I’ll have him fill it out then.”

“Good. It’s important that you apply for FMLA leave because if you qualify, those days won’t be held against you,” Eckles reminded him. “You have 15 days to submit the completed form.”

LOST IN THE SHUFFLE
Fifteen days later, Eckles asked him for the form.

“What? I put it on your desk the day after my appointment, Jonas. That was a couple weeks ago,” Speakman told him. “I can go home and get a copy. Or I can see if the doctor will fax a copy.”

Eckles refused to wait. “Your request for FMLA leave is being denied as untimely because I do not have the certification form in my possession. This absence is your third strike — you’re out.”

FILL IN THE BLANKS
When Speakman tried to appeal his termination, Eckles changed his tune. With the certification in hand, instead of arguing that it was untimely, he asserted that it did not adequately establish Speakman’s entitlement to FMLA leave. He pointed to the section where the doctor was supposed to put a checkmark in one of the boxes to categorize Speakman’s condition. Instead, the doctor had written “bronchitis” next to the box for “incapacity of more than three days...that also involves treatment two or more times by a health care provider.” Also, the doctor failed to list the “probable duration” of the condition, and only listed the date it began.

Speakman tried to submit an addendum from the doctor to clarify the probable duration, but Eckles refused to consider it. So Speakman tried his luck in court.

Said an appeals court: The doctor’s certification provides enough information to satisfy the FMLA. And even if it did not, the employee should have been given the opportunity to amend the form.

KNOW WHAT TO ACCEPT

• An FMLA certification form doesn’t have to be perfect in order for the employee to receive leave. If you expect perfection, you should also expect an FMLA lawsuit.
  
• Don’t hold the doctor’s inaccuracy against the worker. Here, the court said it would not “split hairs over the obvious” — that writing “bronchitis” next to a box was the same as checking it.
  
• Consider all documentation. There is nothing in the FMLA that limits an employee’s ability to produce a medical opinion that contradicts a prior certification.
  
• Notify the employee of deficiencies or confusion. You must give him/her the opportunity to correct it.

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