When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment. However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the "negative certification" may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.

The Facts

Deborah Branham worked for The Dickson Herald, owned by Gannett. On November 7, 2006, Branham called her supervisor and advised that she would not be in because her son was ill. The next day, she sent an e-mail to her supervisor, Tracy Buhler, stating that her son was still sick and that she would again be absent. On November 9 and 10, she left voice messages for Buhler stating that she was sick and would be absent.

The following Monday, Branham's husband left a message for Buhler stating that Branham was still sick and that he was taking her to the doctor. Branham was examined by Dr. Singer, who found her exam to be "normal" and expected her to return to full work duty the following day, November 14. Branham called Buhler later that day and told her that the doctor had released her to come to work the following day. She also told Buhler that she still was not feeling well, and would need to be absent to attend other doctors' appointments during November and December. Buhler asked her to come into the office to fill out a short-term disability form and "see if she qualified for anything."

On November 14, Branham did not report to work, but went to the office late at night to complete an STD / FMLA form and fill out a medical certification form. Buhler faxed the certification form to Dr. Singer's office. On November 17, Dr. Singer faxed the completed certification form back to Buhler. On the form, the doctor indicated that Branham's condition began on November 10, that she could perform her full duties as of November 14, and that she did not require intermittent leave.

Branham remained absent through the Thanksgiving holiday. Although both her supervisor and HR advised her that she needed to provide a medical certification to support her absences, she did not do so. Branham did tell her supervisor that another doctor, Dr. Peters, should have filled out the form. However, the company asked both Dr. Singer and Dr. Peters to review the certification form for accuracy, and was advised that Dr. Peters had not seen Branham and would not fill out a certification for her.

On November 24, the company decided to terminate Branham's employment. A termination letter was sent to her the following Monday. At 6:00 p.m. on the following day, November 28, a nurse practitioner who had previously seen Branham sent the company a medical certification stating that Branham had an illness that began on May 6, and that she would not be able to return to work until January 1, 2007.

The Lawsuit

Branham filed suit alleging that Gannett interfered with her FMLA rights and terminated her employment in retaliation for using FMLA leave. The district court granted summary judgment to Gannett, finding that Gannett was entitled to deny her FMLA leave based upon the "negative certification" from Dr. Singer, indicating that she was not incapacitated. Branham appealed.

The Sixth Circuit Court of Appeals reversed the ruling and remanded the case to the district court for trial. The Court of Appeals held that Gannett could not rely upon Branham's failure to return a medical certification supporting her need for FMLA leave because it never properly triggered her duty to provide a medical certification in the first place. While the district court had found that Branham's supervisor orally requested a certification from her on November 13, the court of appeals held that Gannett failed to make the request in writing, as it was required to do under the applicable FMLA rules. Consequently, it could not rely upon Branham's failure to provide a medical certification as a basis for terminating her employment.

Insights for Employers

  1. As we stressed in our most recent podcast, whenever an employee seeks FMLA leave for his or her own serious health condition or to care for a family member with a serious health condition, the best practice is to always ask the employee for a medical certification. As this case makes clear, that request needs to be made in writing, and the employee must be notified of the possible consequences of failing to provide a certification. Using the proper eligibility notice form and having a complete and up-to-date FMLA policy can go a long way toward eliminating the risk of lawsuits such as this one.
  2. Before terminating an employee who fails to return to work despite a "negative certification" confirming that he or she is not incapacitated, employers should carefully review all of the relevant facts and circumstances to ensure that the employee has received all of the appropriate FMLA notices and had an adequate chance to provide a proper medical certification. It is far better to delay a termination by a few days than to spend the next several years defending a lawsuit.