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Failure to Advise Employee of Consequences of Not Returning Medical Certification Form Results in FMLA Interference Verdict

    Client Alerts
  • September 19, 2014

The Family and Medical Leave Act permits employers to require eligible employees to submit medical certification of their need for personal or companionship FMLA leave. Under Department of Labor rules, employees have 15 days to provide the requested certification. If the employee fails to meet this requirement, the employer can deny FMLA leave.

Last month, the Sixth Circuit Court of Appeals concluded that an employer could not rely on the failure to submit the medical certification form because it did not notify the employee that failure to return the form would result in denial of leave and disciplinary action under its attendance policy. In Wallace v. FedEx Corp., the plaintiff was suffering from multiple health problems that were interfering with her attendance. FedEx provided her with a two-week sick leave, but informed her that any additional time off would need to be FMLA leave. The company provided the plaintiff with DOL’s FMLA medical certification form (WH-380-E), and explained that she needed to return the forms within 15 days. She failed to do so, and FedEx terminated the plaintiff under its attendance policy.

The plaintiff sued, claiming interference with her FMLA rights. Specifically, the plaintiff pointed to 29 C.F.R. § 825.305(d), a DOL rule that states that in order to deny FMLA leave, at the time medical certification is requested, the employer must advise the employee of the consequences of failure to submit the certification. These consequences are not set forth in Form WH-380-E. The Sixth Circuit affirmed a $173,000 jury verdict for the plaintiff, finding that FedEx never provided the plaintiff written notice of the consequences of failing to return the medical certification form on a timely basis. The court also concluded that the DOL rule was a valid exercise of the agency’s administrative authority under the FMLA.

The notice rule is a relatively obscure requirement that is often missed by employers. Employers should prepare a brief written notice to employees to be distributed each time they request FMLA medical certification. The notice should clearly state that failure to return the form on a timely basis will result in denial of FMLA leave, and that unexcused absences could result in disciplinary action, including termination of employment under the company’s attendance policy.