The plaintiff’s dog bit her, leading to a hospital stay, complications and absence from work for more than two weeks. After the plaintiff failed to produce the FMLA Certification from her health care provider to support her absences, her employer terminated her. Finding that there were issues to be resolved by a jury concerning whether the employer’s request for certification was proper, and whether it was “practicable” for the plaintiff to provide the certification in time, the court denied the employer’s motion for summary judgment. Barker v. Genesys Pho, LLC (E.D. MI, Juy 24, 2014). The certification lessons discussed in the case are worth revisiting.
Section 825.305 of the FMLA Regulations is the starting point. Subsection (b) requires the employee to provide the requested certification within 15 calendar days after the employer’s request “unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts…” Many employers view the 15 days as a hard-and-fast rule without considering the “impracticable” exception.
In Barker, the court held that a jury may find that it was impracticable for the plaintiff to submit the certification within 15 days because she was unable to pick up the certification from her doctor because of her medical condition; her husband had just started a new job and could not take time off to pick up the certification; her daughter had just had a baby; and the doctor refused to fax the certification because he did not want to take responsibility for its delivery. “Practicable” may be in the eye of the beholder.
Concerning whether the certification was proper, Subsection (d) states that “[a]t the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification.” The court held that a jury should decide whether the employer advised the employee that she would be terminated if her health care provider’s certification was not received within 15 days. Some companies prefer language softer than “you will be terminated,” but the regulation may require very direct language.