Many federal employees know that if they (or a family member) gets really sick or goes to the hospital, the FMLA provides protected leave that will cover them even if they don’t have enough sick leave. But before an employee can take FMLA leave, she has to request leave and then provide a doctor’s certification of the need for leave at the employer’s request. (See 29 C.F.R. § 825.301). The Department of Labor provides a certification document that employers and employees can use on its website: https://www.dol.gov/whd/forms/wh-380-e.pdf
A problem can arise if the employee does not get the correct certification from the doctor. FMLA leave can be denied even to a deserving employee if the employee does not get the correct certification. The problem arises when the employee provides her employer with a doctor’s certification, but the certification says the employee does not need to miss work or does not have a “serious health condition.” This is known as a “Negative Certification,” meaning that the doctor certified the opposite of what the employee wanted—that there was no reason for the employee to take leave. Under the FMLA, a negative certification from a doctor means that the employer does not have to provide any FMLA leave.
Here are a couple of case examples where courts reviewing FMLA claims have found that the employee’s own doctor has disqualified them by providing a ‘negative certification.’
- In Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 793 (1st Cir. 2011),the court held that the employer “was justified in denying FMLA leave” in part because the employee’s “cardiologist had disavowed the need for any leave.”
- In Brady v. Potter, 476 F. Supp. 2d 745, 757-58 (N.D. Ohio 2007), the court held that the employer was permitted to rely on a “negative certification” in denying FMLA leave because the certification “did not indicate a serious health condition that rendered her unable to perform her job functions.”
These examples show what can happen when an employee goes to see the doctor and is not careful to make clear to the doctor what the purpose of the forms is. Moreover, many doctors’ offices will hand off this responsibility to a nurse or other practitioner, who fills out the forms based on little experience with the patient and the doctor simply signs off on it.
Here are some pointers for employees who are getting their FMLA forms filled out.
- Make sure the employer has filled out “job functions” accurately. For example, if you are expected to lift 20 pounds at work, and that is why you need to take leave, make sure that the employer has included that information.
- Make sure that the doctor identifies in Question 3 all of the ‘essential functions’ that the you (or the patient/family member) cannot perform. Make sure that the language the doctor uses to identify the essential functions matches the employer’s description of the ‘essential functions.’ For example, instead of ‘lifting heavy weight,’ use ‘lift 20 pounds’ to match the employer’s description.
- Make sure before leaving the doctor’s office that the entire form is filled out. An employer may reject the form if it is not filled out in full.
- Review the FMLA form before giving it to the employer. If the form is filled out incorrectly, then you will need to go back to your healthcare provider and get it corrected.
The cases above highlight what happens when an employee relies on faulty FMLA paperwork. Many employees just assume that the doctor has approved them for the A leave they expected, but the doctor may not have. Ensuring that the forms are filled out correctly in the first place can save you (and your employer and healthcare provider) a lot of trouble down the road.
Medical Certifications that are Only for Intermittent leave
A similar issue can arise where the employee is seeking to take continuous leave, but the doctor only certifies intermittent leave, i.e., that the employee needs to take leave on some but not all days. The FMLA permits employees to take both continuous leave and intermittent leave, depending ont he
This is a ‘negative certification’ of sorts, but it does not mean that the employee is not entitled to leave, only that the leave must be intermittent, not continuous. In a recent case before the federal court in Washington, D.C., Hodges v. Dist. of Columbia, 172 F. Supp. 3d 271 (D.D.C. 2016), Judge Tanya Chutkan found that the employee’s certification for intermittent leave did not meet the requirement for continuousFMLA leave, but did meet the requirement for intermittentleave.
Because the employee had this certification, it triggered a number of requirements for the employer. (See 29 C.F.R. § 825.300). These protections required the employer to notify the employee of his eligibility for FMLA leave, explaining her rights and responsibilities, and to notify the employee of what leave would be designated as FMLA-protected leave. Because the employer did not provide these protections, the court found that it ran afoul the requirements of the FMLA.
Consider ADA Accommodations in Addition to FMLA leave.
Not all conditions require FMLA leave. Many conditions that do not require leave may still qualify as a disability under the ADA, and an employee may be entitled to accommodations for that disability.
As a recent example, the federal appeals court in Virginia found that an employee who had suffered a major, but temporary, injury to his legs was entitled to ADA accommodations. (See Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir., 2014)). In other cases, employees who have disabilities such as severe nearsightedness that do not require leave from the employer are still entitled to accommodations under the ADA. (See Sawhney v. Vocus, Inc., Case No. PWG-11-3328 (D. Md. 2013).
Combining FMLA leave and ADA accommodations can also be a good idea. By asking for ADA accommodations before returning to work from FMLA leave, an employee can ensure that the transition from leave back to work is as painless as possible.
Getting FMLA paperwork filled out correctly certainly does not require a lawyer. But a lawyer familiar with the FMLA and the ADA can help you by reviewing what you are going to present to the employer before it creates any problems. A lawyer can also help you understand whether FMLA leave is the right course of action, or if it would be more advantageous to get an ADA accommodation instead of or in addition to the FMLA leave.