Terminating Employee Without Giving Time to Cure Deficient Medical Certification Was FMLA Interference: Third Circuit | Practical Law

Terminating Employee Without Giving Time to Cure Deficient Medical Certification Was FMLA Interference: Third Circuit | Practical Law

In Hansler v. Lehigh Valley Hosp. Network, the US Court of Appeals for the Third Circuit held that when a Family and Medical Leave Act (FMLA) certification submitted by an employee is insufficient under 29 U.S.C. § 2613(b), the employer, under 29 C.F.R. § 825.305(c), must advise the employee what information is necessary to make the certification complete and must provide the employee with time to cure. The Third Circuit also held that where an employer fails to comply with these regulatory requirements, therefore prejudicing the employee, the employee may state a claim for interference under 29 U.S.C. § 2615(a)(1).

Terminating Employee Without Giving Time to Cure Deficient Medical Certification Was FMLA Interference: Third Circuit

by Practical Law Labor & Employment
Published on 25 Aug 2015 • USA (National/Federal)
In Hansler v. Lehigh Valley Hosp. Network, the US Court of Appeals for the Third Circuit held that when a Family and Medical Leave Act (FMLA) certification submitted by an employee is insufficient under 29 U.S.C. § 2613(b), the employer, under 29 C.F.R. § 825.305(c), must advise the employee what information is necessary to make the certification complete and must provide the employee with time to cure. The Third Circuit also held that where an employer fails to comply with these regulatory requirements, therefore prejudicing the employee, the employee may state a claim for interference under 29 U.S.C. § 2615(a)(1).
On August 19, 2015, in Hansler v. Lehigh Valley Hosp. Network, the US Court of Appeals for the Third Circuit held that:
  • When an FMLA certification submitted by an employee is vague, ambiguous, nonresponsive or incomplete as to any of the categories of information required under 29 U.S.C. § 2613(b), the employer, under 29 C.F.R. § 825.305(c), must:
    • advise the employee what additional information is necessary to make the certification complete and sufficient; and
    • must provide the employee with seven calendar days to cure any deficiency.
  • When the employer committed regulatory violations (failure to identify deficiencies in an FMLA medical certification and failure to provide an opportunity to cure) which prejudiced the employee, the employee may state a claim for interference under 29 U.S.C. § 2615(a)(1).
(No. 14-1772, (3d Cir. Aug. 19, 2015).)

Background

Since 2011, Deborah Hansler was employed by Lehigh Valley Health Network (Lehigh) as a technical partner. In March 2013, Hansler submitted a medical certification form completed by her doctor as part of a formal request for intermittent leave (two days a week for about a month) under the FMLA. As a result of her condition, Hansler was unable to work for five days in March. On March 28, Lehigh terminated Hansler for absenteeism (including the absences in March). Lehigh did not seek further information about the medical certification from either Hansler or her doctor. Hansler reminded Lehigh of her FMLA request, but Lehigh informed her, for the first time, that her request had been denied. Following the last of her absences, Hansler learned of a letter dated March 26, 2013 explaining that her request was denied because her "condition presently does not qualify as a serious health condition under the criteria set forth by the [FMLA]."
Hansler sued Lehigh under the FMLA for:
  • Interfering with her substantive rights to medical leave.
  • Terminating her in retaliation for seeking leave.
Hansler alleged she had chronic serious health conditions and argued that Lehigh improperly denied her request for leave without providing her an opportunity to cure her medical certification. The district court granted Lehigh's motion to dismiss for failure to state a claim, holding that:
  • Hansler's request for leave was defective because her medical certification stated her condition would last only one month, but the FMLA requires that a chronic serious health condition persist for an "extended period of time."
  • Since the FMLA certification showed that Hansler was not entitled to leave, Lehigh:
    • was not required to give Hansler a cure period; and
    • was permitted to terminate Hansler for her subsequent absences.
  • Hansler's later diagnosis of diabetes and high blood pressure was of no consequence because it did not occur until after her leave request was denied and her employment was terminated.
(Hansler v. Lehigh Valley Health Network, No. 13-cv-03924, , at *10 (E.D. Pa. Mar. 28, 2014).)
Hansler appealed to the Third Circuit.

Outcome

The Third Circuit reversed the district court and remanded, holding that:
  • Hansler was entitled to the cure period set forth in the FMLA regulations because the certification was insufficient, rather than negative on its face.
  • When a certification submitted by an employee is "vague, ambiguous, or nonresponsive" or "incomplete" as to any of the categories of information required under 29 U.S.C. § 2613(b), the employer:
    • "shall advise [the] employee ... what additional information is necessary to make the certification complete and sufficient"; and
    • "must provide the employee with seven calendar days ... to cure any such deficiency."
    (29 C.F.R. § 825.305(c).)
  • Hansler stated a claim for interference under 29 U.S.C. § 2615(a)(1) because Lehigh's regulatory violations (failure to identify deficiencies in her medical certification or to provide her with an opportunity to cure) prejudiced Hansler, as she was not given time for her doctor to provide her full diagnosis or to demonstrate her entitlement to leave before Lehigh terminated her employment.
The Third Circuit found:
  • If an employer determines that an FMLA certification is either incomplete or insufficient, it may deny the requested leave on the basis of an inadequate certification, but only if it has provided the employee with seven calendar days to cure the deficiency (see Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 837 (7th Cir. 2014)).
  • Unlike in Stoops v. One Call Commc'ns, Inc. and related cases, in which the FMLA certification was found to be a negative certification, Hansler's FMLA certification requesting intermittent leave did not on its face disqualify her from FMLA eligibility (141 F.3d 309 (7th Cir.1998)).
  • A "sufficient certification" for intermittent leave under 29 U.S.C. § 2613(b) must address both "the expected duration of the intermittent leave" and the "probable duration of the condition." Since Hansler's certification did not specify whether the "probable duration of one month" referred to the duration of the leave request, the duration of the medical condition, or both, the certification was not a "negative certification," but was instead "vague, ambiguous, or non-responsive," meeting the definition of "insufficient." (29 C.F.R. § 825.305(c); see Kauffman v. Fed. Express Corp., 426 F.3d 880, 886-87 (7th Cir. 2005).)
  • The fact that Hansler was diagnosed with diabetes and high blood pressure after she was fired does not affect the determination of whether her medical certification was insufficient.
  • On receipt of Hansler's insufficient certification, Lehigh was required to advise Hansler that her certification was insufficient, state in writing what additional information was necessary to make it sufficient and provide her with an opportunity to cure before denying her request for leave (29 C.F.R. § 825.305(c)). Lehigh ignored these requirements and, instead, terminated Hansler's employment without first notifying her that the request for leave had been denied. If Hansler could prove she was denied benefits to which she was otherwise entitled, Hansler may premise her FMLA interference claim on these regulatory violations.
  • Several district courts have found interference claims following an employer's breach of its obligations under Section 825.305 where the employee established likely entitlement to FMLA benefits. The decisions suggest that qualifying employees who allege harm arising from the employer's failure to provide a cure period may assert a cause of action for interference. See, for example:
  • Third Circuit precedent supports an interference claim concerning an employer's failure to advise an employee of his substantive rights under the FMLA in violation of regulatory requirements. The court found a cause of action for notice interference where a plaintiff was able to show prejudice as a result of the regulatory violation. (Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 142 (3d Cir. 2004).)
  • The logic of Conoshenti naturally extends to an employer's failure to comply with its regulatory obligations following receipt of an insufficient or incomplete medical certification. Under Section 825.305(c), employers must advise employees of deficiencies in their medical certifications and provide them with an opportunity to cure. Further, to encourage employer compliance, the regulations provide injured employees with a cause of action for interference (see 29 C.F.R. § 825.220(b)).

Practical Implications

When an employer receives an incomplete or insufficient FMLA certification from an employee, the employer must ensure that it complies with the requirements under the FMLA regulations to request additional information and provide the required time to cure. Further, while an employee seeking FMLA leave must state a qualifying reason for leave and fulfill notice requirements, the employee does not need to expressly assert rights under the FMLA or even mention the FMLA. Instead, when the employer does not have sufficient information about the reason for an employee's use of leave, the burden is on the employer to inquire further to determine whether leave is potentially FMLA-qualifying.
To ensure compliance with the FMLA, employers are advised to implement and maintain a valid FMLA policy. For a sample policy, see Standard Document, Family and Medical Leave Policy.