Lessons From the Seventh Circuit on Relying on FMLA Certifications and Requiring the Use of Paid Leave

Quick Hits

• A Seventh Circuit opinion warns employers against strictly relying on health care provider certifications for FMLA leave when they possess additional information about an employee’s health condition.
• Employees who fail to comply with paid leave substitution policies are still entitled to unpaid FMLA leave.
• Employers may want to review their paid leave substitution policies to ensure compliance with FMLA regulations and avoid potential legal issues.

Background

In Davis v. Illinois Department of Human Services, a pregnant employee had missed a number of days due to morning sickness. After being notified of her right to FMLA, she subsequently submitted an FMLA certification from her health care provider stating that she required leave to attend regular medical appointments until the child’s birth, and then six weeks or more for recuperation after the birth. The doctor responded “no” to the question “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions.”

The employer approved the employee for intermittent leave for appointments and continuous post-birth leave. But because the certification did not address leave for morning sickness, the employee’s absences for that reason were deemed unauthorized. The employer determined that one of the absences was also unauthorized because the employee had failed to comply with company policy regarding the substitution of paid leave for FMLA leave. Based on the unauthorized absences, the employee was dismissed. She then sued, alleging violations of her FMLA rights.

FMLA and Pregnancy

The FMLA provides employees with up to twelve workweeks of leave during any twelve-month period for a serious health condition, including any period of incapacity due to pregnancy or prenatal care. This specifically includes absences arising from pregnancy-related illnesses, such as severe morning sickness.

The employer is entitled to a medical certification from the employee’s health care provider to justify the need for FMLA leave—including intermittent leave for morning sickness. The certification must be “complete and sufficient,” and if it is not, the employer must inform the employee of what additional information is required and provide the employee with seven days in which to correct any deficiency.

Under the FMLA regulations, 29 C.F.R. §§ 825.302(d) and 825.303(c), if an employee is approved to take FMLA leave on an intermittent basis, the employee may still be required to comply with the employer’s “usual and customary notice and procedural requirements” for requesting time off. In the present case, the employer mandated that employees on FMLA leave comply with its standard “call-off procedures,” which required employees to call in at least one hour prior to a missed shift or to notify the appropriate supervisor when leaving early.

Reliance on the Certification?

In the present case, the employer argued that, based on the health care provider’s certification, which stated that there was no need for leave for flare-ups, the employee was not entitled to leave for morning sickness. Although the federal district court found that the employer was entitled to rely on the certification, the Seventh Circuit disagreed.

The Seventh Circuit first noted that morning sickness should not be considered a “flare-up” when it is specifically covered by the FMLA. It next confirmed that, generally, an employer may require a medical certification to support a request for leave, including for morning sickness. Here, however, the employer was well aware of the employee’s need for intermittent leave for morning sickness when it approved her FMLA request—in fact, her bouts of morning sickness were the reason the employer notified her about her FMLA leave rights in the first place. The Seventh Circuit stated, “In such cases, we have recognized that an employee’s entitlement to FMLA leave is not strictly bound by the precise parameters laid out in the medical certification.” Accordingly, the Seventh Circuit determined that a reasonable jury could find that the employer knew the employee needed intermittent leave for morning sickness at the time it approved her FMLA leave.

The Seventh Circuit further found that, given its knowledge of the employee’s morning sickness, the employer knew that the certification was incomplete. Accordingly, the court reasoned, the employer “should have provided [the employee] with an opportunity to supplement [the certification]” but failed to do so.

FMLA and Use of Paid Leave

While FMLA leave is unpaid, an employer may require the employee to substitute accrued paid leave, such as vacation, sick leave, or other paid time off (PTO), running concurrently with the unpaid FMLA leave. In that regard, 29 C.F.R. § 825.207(a) of the FMLA regulations provides that, “the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment.”

Another section of the regulations, 29 C.F.R. § 825.300(c)(iii), further requires employers to notify employees of their “entitlement to take unpaid FMLA leave if the employee does not meet the conditions of paid leave.” The FMLA regulations specifically provide that employees who fail to comply with the employer’s paid leave substitution policy will not receive any pay, but are still entitled to take unpaid FMLA leave.

The employer in the current case had implemented a paid leave substitution policy. Under the policy, employees were supposed to know how much paid leave they had accrued and to request the accrued leave to cover their FMLA absence. The policy provided that if employees did not have the requested accrued paid leave to cover the absence, the absence would remain unauthorized, regardless of whether it was related to FMLA, and subject to disciplinary action. In addition, employees who had accrued paid leave available but repeatedly requested unpaid FMLA would also be subject to disciplinary action.

The employer argued that, even if the employee was entitled to FMLA for morning sickness, she failed to comply with its policy governing the substitution of paid leave for FMLA leave, since she had requested more paid leave than she had actually accrued. Therefore, it was entitled to characterize her absence as “unauthorized” on these grounds, providing an alternative basis for termination of employment. The district court agreed, noting that the FMLA allows employers to require employees to follow the “usual and customary notice and procedural requirements for requesting leave.”

Again, the Seventh Circuit disagreed. It found that the requirement to comply with notice and procedural requirements is specific to requesting leave, which is distinguished from the requirements related to the substitution of paid leave. And while failure to comply with the first may result in the delay or denial of FMLA leave, the failure to comply with the second only results in the denial of pay for the FMLA leave—the regulations expressly provide that the employee is still entitled to unpaid FMLA leave. Thus, nothing in the FMLA regulations allows the employer to discipline an employee for failing to comply with the employer’s paid leave substitution policy, especially where, as here, the FMLA leave has been approved.

Lessons for Employers

This case highlights several important considerations for employers. First, at least in the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin), it may not be wise for employers to rely strictly on a health care provider certification to deny FMLA coverage when the employer is in possession of additional information that casts doubt on the accuracy of the certification. Under those circumstances, employers may wish to consider informing the employee that the certification is not complete and that the health care provider should address the missing information.

Second, employers may want to refrain from disciplining employees for failing to comply with paid leave substitution policies—at most, employees may be denied the use of paid leave, but must still be provided with unpaid FMLA leave. Thus, employers may want to review their paid leave substitution policies to ensure that there are no disciplinary consequences for failure to comply with the policy requirements.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence and State Developments blogs as additional information becomes available.

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