In Branham v. Gannett Satellite Information Network, Inc., No. 09-6149, 2010 WL 3431617 (6th Cir. Sept. 2, 2010), the Sixth Circuit Court of Appeals held that an employer is not necessarily entitled to rely on a “negative certification” submitted by an employee's health care provider in denying a request for FMLA leave.

The plaintiff-employee in Branham initially claimed that the absences for which her employment was terminated were related to a “serious health condition” within the meaning of 29 CFR § 825.113. Her employer responded by requesting that the employee produce a medical certification confirming her inability to work. However, the employer's request was not made in writing, it did not expressly provide the employee with 15 days to comply, and it did not expressly inform her that a failure to certify an FMLA-qualifying reason for the absence would result in a denial of the leave. These requirements for a proper request for medical certification are all set forth in 29 CFR § 825.305.

The employee returned a medical certification from her treating physician, but the certification actually undermined her claim, denying that the employee was incapacitated and indicating that she could return to work. The employer relied on this “negative certification” and, when the employee failed to return to work, terminated her employment under its absenteeism policy. In the meantime, the employee had found another health care provider willing to certify her absence as FMLA-qualifying.

The District Court summarily dismissed the employee's FMLA claim without a trial, holding that the employer had a right to rely on the first medical certification submitted. However, the Sixth Circuit reversed and instructed the lower court to let the trial go forward. According to the Sixth Circuit, the employer's oral request “never properly triggered the [employee's] additional duty to provide a medical certification” in the first place. So despite the fact that the employee's treating physician volunteered that she was medically able to work, the employer's failure to follow the strict requirements of 29 CFR § 825.305(b) left the employer at the mercy of a jury trial on the issue of whether it had interfered with the employee's FMLA rights.

This case serves as a familiar warning to employers. Particularly when it comes to the FMLA, courts are reluctant to apply a “no harm, no foul” rule for employer oversights. Accordingly, employers should have in place a careful, consistent system for approving or denying FMLA leave requests, using approved forms and communicating employee deadlines every single time. Even where facts seem to overtake the system – such as where a physician's early medical certification actually denies the applicability of the FMLA – employers must avoid the temptation to skip inconvenient and seemingly unnecessary steps. The FMLA is a law that has been created, administered and fine-tuned by bureaucrats, and it has little tolerance for common sense.