Employers, Beware Vague FMLA Requests In 3rd Circ.

July 15, 2015Articles Law360

Reprinted with permission from Law360. (c) 2015 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.

On June 22, 2015, the Third Circuit issued a clear message to employers: When it comes to the Family and Medical Leave Act of 1993, strict adherence to the regulations is necessary and gives employees the benefit of doubt. Plaintiff Deborah Hansler requested leave from her employer under the FMLA and submitted a medical certification providing insufficient information to determine whether she was eligible for FMLA leave. In fact, at the time she submitted her request for FMLA leave, her condition was not even diagnosed. The Third Circuit issued a precedential opinion permitting her to proceed with her claims by holding that an employer violates the FMLA by failing to provide an employee with an opportunity to cure an insufficient medical certification in advance of termination of employment. Hansler v. Lehigh Valley Hospital Network, __ F.3d __, (3d Cir. 2015). The court’s detailed ruling, which analyzed many key regulations, is a worthwhile read for any employment lawyer.

Plaintiff Submits an Insufficient Medical Certification to Her Employer

In early March, 2013, Hansler began experiencing shortness of breath, nausea and vomiting. Id. at *1. On March 13, 2013, Hansler’s physician completed a medical certification requesting intermittent FMLA leave for two days a week for approximately a month, which she submitted to her employer, Lehigh Valley Hospital. Id. It was undisputed that at the time she submitted her certification, the cause of the plaintiff’s symptoms was unknown. Id. As a result of her unknown condition at the time, she was unable to work at least five days. Id. While her medical certification referred to the length of her requested leave, it did not state the nature or duration of her medical condition.

After Hansler submitted her vague medical certification and after missing five days of work, the defendant terminated her citing absenteeism as the basis. Id. Hansler reminded the defendant that she had requested time off under the FMLA. Lehigh Valley Hospital informed her, for the first time, that her request had been denied because her certification discussed a condition that “presently does not qualify as a serious health condition” under the criteria set forth by the statute. Id. Thereafter, Hansler received a diagnosis of diabetes and high blood pressure. Id. Hansler proceeded to sue Lehigh Valley Hospital on both FMLA interference and retaliation theories. According to the Third Circuit, Lehigh Valley Hospital’s failure to offer the plaintiff any opportunity to cure her ambiguous medical certification was ultimately fatal under the statute’s regulations.

The district court ruled in favor of the employer on the basis that the plaintiff’s request for leave was “invalid” and “negative on its face.” Id. at *3. Further, the district court relied on the fact that the plaintiff’s diagnosis did not occur until after her leave was denied. The Third Circuit, in a 2-1 decision, reversed and remanded the matter for further proceedings, holding that the plaintiff was entitled to the cure period set forth in the regulations because her certification was insufficient, rather than negative on its face, even in light of the plaintiff’s after-the-fact diagnosis.

The Third Circuit’s Analysis

Hansler appealed to the Third Circuit on the basis that she was entitled to the cure period set forth in the regulations despite the fact that her certification was insufficient. The Third Circuit agreed.

In reversing the district court, the Third Circuit relied heavily on the requirements of the FMLA’s regulations. The regulations require 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.” 29 C.F.R. § 825.305(c). A certification is “insufficient” if the employer receives a complete certification, but the information provided is vague, ambiguous or nonresponsive. Id. The Third Circuit went on to hold that if an “employer determines that a certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification. But it may only do so if it has ‘provide[d] the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.’” Hansler, 2015 WL 3825049 at *2. Because the employer failed to provide Hansler an opportunity to cure her insufficient medical certification, it violated the FMLA. Id. at *3.

The Third Circuit took care to offer a distinction between receiving a medical certification that is “negative” on its face (as described by other courts), versus one where information is vague and ambiguous. Id. In ruling in favor of Lehigh Valley Hospital, the district court had originally concluded that the plaintiff’s medical certification was negative on its face. The Third Circuit, in reversing the trial court, took care to note that the “regulations make no reference to negative certifications.” Id. Further, the Third Circuit noted that a negative certification is a judicially crafted concept with roots in a decision from the Seventh Circuit. Id. citing Stoops v. One Call Commc'ns Inc., 141 F.3d 309 (7th Cir. 1998). In Stoops, the employee had submitted a medical certification from his physician that explicitly stated the employee was “not presently incapacitated and would not have to work intermittently or on a reduced schedule.” Stoops, 141 F. 3d at 311. The Seventh Circuit described this as a “negative certification” because a serious health condition is one that prevents an employee from performing his job, but the employee's physician in Stoops explicitly stated that the employee could perform his job functions. Id. at 312–13 (“Where an employer ... requests from the employee and receives a physician's certification that indicates that an employee's serious health condition does not require him to miss work, the employer may rely on that certification.”). The Third Circuit went on to note that in Stoops and other cases discussing “negative certification[s]” that the medical certifications in question contained “affirmative statements” from the employees' physicians that the employees would not miss any work, which, by definition, meant they did not have “serious health condition[s].” Hansler, 2015 WL 3825049 at * 4, citing 29 U.S.C. § 2612(a)(1)(D). Without reaching the issue of whether a medical certification may be negative on its face, the Third Circuit was not persuaded by Stoops. Here, in contrast, the Third Circuit noted the defendant was confronted with an ambiguous or nonresponsive certification, thus triggering the regulations’ cure requirements. Id. at *4.

A review of Hansler makes the Third Circuit’s message clear: An employer must strictly comply with the FMLA’s regulations, which provide an opportunity for an employee to receive notice of and to cure defects in a vague or ambiguous medical certification. When Human Resources professionals properly identify insufficiencies in FMLA paperwork, the employee must be notified of and provided with an opportunity to cure. In general, failure to conform to even technical requirements of the regulations puts an employer in peril.

Lehigh Valley Hospital Network petitioned the Third Circuit for rehearing on July 6, 2015. It claims that the ruling, as it stands, will negatively impact employers and their administration of the FMLA. This remains a worthwhile case to watch.

Reprinted with permission from Law360. (c) 2015 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.