Dog-Bite Victim’s FMLA Certification Delay Dispute Goes to Jury

An employee who experienced serious complications from a dog bite could advance her FMLA interference claim following her discharge for allegedly unexcused absences, ruled a federal district court in Michigan. The court observed that an employee’s failure to timely provide a physician certification is a defense to an FMLA interference claim only if the employer properly asked for a certification in the first place and if the employee failed to respond within the required time frame. Finding that there were material factual disputes as to whether the 15-day period for the employee to submit certification had begun to run on the date that the employer started counting, and whether it was practicable for her to provide such certification, the court denied the employer’s motion for summary judgment.

Dog-bite complications. The employee was bitten on the hand by her dog. The bite required stiches and immediate antibiotic treatment from a local emergency room. The next night the employee’s “hand started to swell and ooze.” On the employee’s first scheduled day of work after the bite, she planned to see her doctor. In compliance with her employer’s attendance policy, the employee called her supervisor on that morning and reported that she needed to see her doctor because the dog bite had become infected. At the time the employee spoke to her supervisor, she had used up all of her available time off. The employee understood that unless she had a justifiable excuse to be away from work, there was nothing that covered her absence at that time. Thus, she intended to seek leave under the FMLA.

After examining the employee’s hand, the employee’s physician sent her directly to the hospital for inpatient treatment. The employee again called the employer and informed it that she was being hospitalized and would be absent from work. The employee remained hospitalized for several days. But within three days of being discharged from the hospital, the employee suffered complications from the dog bite. In a follow-up doctor visit she was diagnosed with a “systemic infection.” Her doctor advised her to stay home from work. During that visit, the employee gave her doctor a certification form and asked the doctor to complete it.

Following the doctor’s appointment, the employee spoke with her supervisor and was reminded of the importance of providing medical substantiation. The employee explained that her return day was pushed back because of the complications and asked for guidance as to how her physician should complete the certification. Although the doctor completed the certification form, the employee was too ill to retrieve it and submit the form to the employer. The employee was unable to work on her scheduled return date because she suffered from complications due to her medications. She called in more than an hour after the start of her shift, rather than prior to the start of the shift.

Two days after she failed to return to work and after more than a three-week absence, the employee was terminated for failing to submit certification. According to the employer, the 15-day period in which to supply the requisite physician certification began to run on the first day of her absence. After the employee received the termination letter, she obtained the completed certification from her physician and submitted it to the employer, requesting reinstatement. The completed certification did not cover the full period that the employee was absent, but she told her employer that she would have her physician update the form. Nonetheless, the employer rebuffed the employee and refused to reconsider her termination. The employee filed this action.

Certification policy. The employer’s leave policy stated that it would require an employee to provide a doctor’s certification of a serious health condition. It also instructed employees to respond to a request for certification within 15 days of the request or provide a reason for the delay. The leave policy did not specifically inform employees that failure to provide a certification could result in termination, only that the “[f]ailure to provide [a] certification may result in denial of the leave.”

The employee was aware that the employer’s leave policy required an employee seeking FMLA leave to submit a physician certification within 15 days of a request. She also acknowledged that when she spoke with her supervisor she was advised to fill out a certification. There was no evidence that the employer made a written request for a certification, nor did it advise the employee in writing of the consequences for failing to submit a certification within 15 days.

Was clock ticking? According to the employer, when the employee announced her need for time off, it exercised its right under the FMLA to require her to submit — within 15 days — a physician’s certification that her condition prevented her from working. The employer insisted that the employee failed to provide this certification within the 15-day period, her leave was thus not protected under the FMLA, and consequently it lawfully terminated her employment for missing work.

The FMLA does not compel every employee seeking leave to provide a physician certification confirming the existence of a serious health condition. However, the FMLA does allow an employer to “require” that a request for FMLA leave “be supported by a certification issued by the [employee’s] health care provider.” The FMLA also requires an employee to deliver a properly requested physician certification “in a timely manner.” Importantly, the 15-day period to provide a certification begins (if at all) on the date the employer properly requests the certification, not on the date that the employee seeks or begins leave. An employee’s duty to provide a physician certification is not “triggered” unless and until an employer makes a “proper request” for the certification. However, an employer may fire an employee who fails to meet the 15-day deadline.

Proper request for certification. Here, there was a material factual dispute as to whether the employer had the right to fire the employee on the termination date because it considered her absences were unexcused as she failed to submit a timely certification. According to the employer, the employee failed to submit a certification prior to her termination date, so her absences were unexcused, and it did not deny her FMLA benefits.  However, the court concluded that the employer had the right to terminate the employee only if it had made a “proper request” for a certification such that the employee had 15 days to submit a certification and that time had expired. A material factual dispute remained as to whether a proper request was made and, if so, whether it was practicable for the employee to respond within 15 days.

The only competent evidence concerning communications between the employer and employee was a telephone call the employee made to her supervisor. That evidence was equivocal as to whether the supervisor actually “advised” her to complete a certification. Moreover, even if the supervisor had “advised” the employee to “fill out FMLA paperwork” on that date, there is a material question of fact regarding whether that would have started the 15-day period. The supervisor’s request would have started the clock only if the supervisor also informed the employee of the consequences of failing to submit a certification on time. There was no definitive evidence in the record that the supervisor so informed the employee of those consequences during the conversation.

Oral certification request. Further, the supervisor’s communications with the employee were oral, and it was not clear that an oral request for certification would have been sufficient to start the 15-day time period. An oral request would be effective only if the employer had made a proper written request for a certification from the employee within the 12 months preceding her leave. Because it was not clear that the employer had a legal right to deem the employee’s absences unexcused for failing to submit a certification and terminate her employment based on those absences, it was not entitled to summary judgment.

Timing of certification. Additionally, the court determined that even if the employer had established that it made a proper request for certification, the employee would have been entitled to submit the completed form following her termination if it was “not practicable” for her to have met the 15-day deadline. The employee testified repeatedly that in the days before the employer’s deadline, she was so ill that she could not leave her home. At any rate, there was a material factual dispute as to whether the employer ever properly requested a certification from the employee and, as a result, there was a dispute as to whether the employer had the right to deem her absences unexcused for failing to submit a certification. Although the employer mailed certain “FMLA paperwork” to the employee, there was no evidence that this “paperwork” communicated the essential contents of a request for a certification.

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