Court Says Employee Can Be Fired for Doctor’s Failure to Submit FMLA Medical Certification

The Family and Medical Leave Act (FMLA) seeks to create a balance between the needs of employees and the economic demands of the workplace. The purpose of the Act is to entitle employees to take reasonable leave for stated reasons in a “manner that accommodates the legitimate interests of employers.” Addressing the limits of this balance, the United States Court of Appeals for the Fifth Circuit recently ruled that an employer may terminate an employee, without violating the FMLA, when the employee’s doctor fails to provide a requested medical certification by the deadline set by the employer. Urban v. Dolgencorp of Texas, Inc. (5th Cir. 2004).

Debbie Urban began working for Dollar General in May 2001. In May 2002, when she was working as an assistant store manager, Urban’s doctor scheduled her for bilateral carpal tunnel surgery. The surgery was scheduled to take place on May 28 and 30, 2002. Prior to the first surgery date, Urban notified Dollar General that, due to her upcoming surgery, she was requesting leave pursuant to the FMLA through August 24, 2002. On or about June 4, 2002, pursuant to its right to request medical certification in support of Urban’s request for leave, Dollar General notified Urban that it required such certification from her physician before approving her leave as FMLA-qualified. Dollar General set a deadline of June 24, 2002, for receipt of her medical certification, well beyond the 15-calendar-day minimum requirement set by the regulations.

Urban requested, and Dollar General granted, an extension of time within which to return the completed medical certification form to July 9, 2002. A medical certification is considered adequate when it includes the following information: 1) the date on which the serious health condition began; 2) the probable duration of the condition; 3) the appropriate facts of the condition within the knowledge of the health care provider; and 4) to the extent that leave is requested because of the employee’s own condition, a statement that he or she is unable to perform the functions of his or her job. If an employer requests such documentation, the FMLA requires that the employer affirmatively notify the employee of the consequences of failing to provide sufficient certification. Finally, if the employer finds the certification to be incomplete, the employer must give the employee a reasonable time to cure the deficiency.

In Urban’s case, her medical certification was not incomplete, it was nonexistent. After not receiving any medical certification on July 9, 2002, Dollar General notified Urban in writing that it was terminating her due to unauthorized absences. Urban filed suit, alleging that she had asked her doctor to submit the form, and that she did not learn that it had not been submitted until she received the termination letter. She argued that her statutory right to cure any insufficiency in her medical documentation should be extended to the facts of her case, where her documentation was never provided. The court declined to accept Urban’s reasoning. Dollar General provided Urban with more than the statutorily allotted time for supplying the required medical documentation and, in fact, granted her an extension of that time. Dollar General notified Urban of the consequences for failing to submit her documentation by the deadline. Having complied with the statutory requirements, the court makes clear for Dollar General and all employers that a “deadline” under the FMLA means a “deadline.”

Employer Notes: Strictly follow the time requirements for allowing an employee to produce medical documentation you require under the FMLA. That way, you retain the leverage when dealing with an uncooperative employee.

Submitted by Peter Bennett, President, The Bennett Law Firm, Portland, Maine. You can contact Mr. Bennett at pbennett@thebennettlawfirm.com.

Reprinted from Council’s Personnel Law Update newsletter. To subscribe or order a free trial subscription, click here.

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