FMLA Protection Regarding Doctor’s Notes

Labor & Employment Department

Scenario

Employee is out for two days and brings in a doctor’s note that simply states patient was ill and unable to work two days. Coincidentally, the employee had previously scheduled vacation days for Friday and Monday, meaning she had a six day absence, with four of those work days. The employer questions the legitimacy of the employee’s time off and tells her so when she returns to work.

The employee did not request Family Medical Leave Act (FMLA) time off and the employer did not provide her with paperwork to fill out for such leave. The employee’s manager was also unhappy with the manner in which the employee let the manager know that she was out sick (she taped the doctor’s note to the manager’s door), and as a result the employee was terminated. The employee sued.

In a major FMLA decision in early July, the U.S. Court of Appeals for the Third Circuit (which covers Pennsylvania, New Jersey and Delaware) held that a short absence with conflicting medical evidence and employee testimony may establish a period of protected FMLA leave – thereby barring any discrimination or discipline based on the absence. This case ruled that the employee’s description of her illness, combined with “some medical evidence,” can be sufficient to establish a protected absence due to a “serious health condition,” as required under the FMLA.

The decision will require employers covered by the FMLA (generally, those with 50 or more employees within 75 miles of the employee’s worksite) to exercise more caution than ever when dealing with an employee who claims he or she has been out sick, but fails to provide medical certification for the full absence.

But, did the employee have the protection of the FMLA, which would prohibit her termination?

The definition of a “serious health condition” under the FMLA requires a three-day minimum loss of work. Here, the employee’s physician certified only two sick days. However, the employee stated that she was sick on her vacation days as well.

On the critical issue of whether the employee must establish thorough medical evidence of the need for three or more days of leave, the Court noted that federal regulations are unclear. Courts in other parts of the country have already ruled that the employee’s own testimony combined with some medical evidence is enough to show that the absence was due to a “serious health condition” and therefore the employee is protected by the FMLA’s prohibition on disciplinary action or retaliation based on the leave of absence. The decision made clear that the employee’s self-diagnosis is not enough – there must be some medical documentation.

So what does this mean for employers?

The decision provides helpful guidance to employers on considering evidence beyond doctor’s notes, but still leaves many questions unanswered, including the key issue of how much “medical evidence” is needed in combination with the employee’s own claims. The answers likely will be fleshed out in the courts, as they apply this new standard. In the meantime, employers should consider the following steps in light of the decision:

• Train all managers about the FMLA, and encourage them to not handle it themselves. In general, once the issue of sick leave or family leave arises, the matter should be turned over to human resources or other trained personnel to handle with the employee – and not the front-line supervisor. One big problem in this case was that the employee’s manager told her on the day she returned to work that he wanted to fire her because of her sick leave.
• Avoid disciplinary action relating to a sick day or medical leave, unless the situation has been thoroughly reviewed regarding FMLA implications (as well as Americans with Disabilities Act issues). Importantly, as this case demonstrates, an employee is not required to request FMLA leave in order to be protected by the law. Rather, the employer bears the burden of complying with the FMLA – and notice of a medical condition incapacitating an eligible employee for three or more days is notice of potential FMLA leave.
• Do not automatically reject an employee’s claims as to her own illness, even if her assertions go beyond what her physician has certified and the circumstances suggest malingering. As noted above, an employee can make out a FMLA claim based in part on her own testimony, even if it varies from her doctor’s note. If such an inconsistency arises, investigate and review the claim carefully (see the options below), and seek the advice of counsel, if needed. It is important to understand that any discipline may lead to litigation.
• Review your company’s FMLA policy to determine whether it provides sufficient guidance for managers and employees. If needed, amend the policy on routing sick leave claims through human resources and dealing with inadequate medical certifications. The FMLA provides several steps that an employer can take to verify a dubious claim for medical leave, including (1) requiring a physician’s certification for the entire leave period; (2) allowing certain company designees to contact the employee’s healthcare provider directly to address discrepancies or uncertainties; and (3) even challenging the certification with a second medical exam and opinion by the company’s doctor, if necessary. Moreover, Courts allow employers to establish procedures in addition to those set forth in the FMLA, including requiring daily call-ins on sick days.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. To schedule a consultation with an employment law attorney, please contact our office at 610-436-0100 or [email protected]