If an employee seeks FMLA leave, she typically needs to ask for it. Likewise, it goes without saying that if an employee is asked to provide a medical certification in support of her request (something employers are free to seek) and fails to provide that information – or worse provides a certification indicating that she does not qualify for FMLA leave – the employer has no obligation to provide that leave. Or does it?
In Hansler v. Lehigh Valley Hospital Network, the plaintiff, Ms. Hansler, asked for a two-day per week, one-month leave of absence to deal with certain medical issues, a condition that was diagnosed after her separation as diabetes. In support of her request, Ms. Hansler submitted a medical certification that referred to the length of the requested leave, but did not describe the nature or duration of her condition. The hospital network, instead of asking for clarification of the certification, terminated Ms. Hansler’s employment after she took several days off, contending that because Ms. Hansler was requesting only limited time off, her condition did not qualify as a “serious health condition” under the FMLA and entitle her to leave.
Ms. Hansler thereafter brought suit claiming that the hospital network interfered with her FMLA rights by terminating her employment and retaliated against her for requesting the leave, claims that the trial court dismissed on the ground that Ms. Hansler’s medical certification indicated on its face (by virtue the duration of leave requested) that Ms. Hansler did not qualify for FMLA leave. On appeal, the Third Circuit Court of Appeals reversed. The Court, in a 2-1 decision, held that the hospital network, rather than just acting on the information in the certification, should have asked Ms. Hansler for additional information, even though on its face the information indicated that Ms. Hansler did not qualify for FMLA leave.
In one sense the decision is predictable and understandable. After all, the hospital network with its sophisticated HR capabilities could easily have reached out to Ms. Hansler and asked her for additional information via an updated certification and Ms. Hansler, for her part, was later diagnosed with diabetes, a condition that does qualify as a “serious health condition.” Yet, the decision is not without concern. FMLA regulations provide that an employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” But FMLA case law also holds that, where the certification indicates that the employee does not have a serious health condition, the employer need not follow up further with the employee about her need for leave. And, here, there was at least a decent argument that that was the case given the limited leave requested by Ms. Hansler.
So what is an employer to do when faced with an incomplete FMLA certification? If the certification clearly indicates that no leave is needed or that the employee otherwise clearly is not entitled to leave, it seems fair to say that the employer can rely on the certification and deny the leave request. If, however, the certification indicates that a leave of any length is needed, the employer would be wise to follow up with the employee and provide her an opportunity to submit additional information within the seven-day period contemplated in the FMLA regulations.