Have you ever made a rash decision that you wish you could take back the second you made it? One employer must feel that way right about now. Last week, a federal court refused to dismiss FMLA claims made against the employer by an employee who was terminated for exceeding the number of “episodes” of depression his doctor estimated he would have. This sad story is a lesson for all employers, because it raises such a common circumstance all employers face.


Fincantieri Marine Group (FMG), which builds ships, employed Jim Hansen, a shipbuilder, who suffered from depression.  Jim provided medical certification documenting his depression as a serious health condition and indicating that he would have episodic flare-ups that would periodically prevent him from working.  Jim’s doc estimated that he would have about four flare-ups during a six-month period with a duration of incapacity of two to five days per episode.

That’s easy enough, I suppose.  Until Jim had 10 episodes of depression in about half that time.  The employer clearly had reason for concern.  But what followed was a costly misstep. The employer (through its third party administrator) sent a rather cryptic note directly to Jim’s doctor, stating simply:

“[Jim]’s 7/1 absence is out of his frequency and duration. Please confirm item #7.”  [Author Note: #7 mistakenly referred to the wrong question on the medical certification.  Nevertheless, the court presumed that the employer was referring to the frequency and duration of the serious heath condition.]

Jim’s health care provider, Dr. Post, replied with an equally cryptic response:

“7/6/11: Item #7 confirmed. P.”

Garbage in, garbage out, it seems to me.

Based on Dr. Post’s response, FMG denied Jim’s request for FMLA leave for his July 1 absence and sent him a letter informing him that his request was denied because his approved leave under the medical certification was exhausted.  Jim was absent thereafter on several occasions and all were denied in reliance on the doctor’s notation above.

When Jim blew past the number of absences allowed under FMG’s attendance program, FMG terminated Jim’s employment.  Although he had been granted FMLA leave, FMG explained that he had exceeded the frequency his doctor certified.  After his termination, Jim filed a lawsuit alleging FMLA interference and retaliation claims.


In seeking to dismiss Jim’s lawsuit, FMG argued that Jim’s termination was proper because his absences “significantly exceeded the estimated frequency set forth in the certification provided by Dr. Post.”

Agreed that they exceeded the estimate by a long shot.  But did exceeding the doctor’s estimate mean that Jim was not entitled to leave and could be terminated for these absences?  As an initial matter, there was no evidence that Jim was engaging in FMLA abuse or fraud.  Similarly, everyone agreed that Jim provided adequate notice of his need for FMLA leave on each occasion he had a flare-up. Because Jim already had an initial medical certification on file with FMG regarding his depression, the employer’s only recourse under the regulations was to seek recertification of the serious health condition.

Under the FMLA regulations, an employer may request recertification if:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). . . .

29 C.F.R. § 825.308(c)(2) (emphasis added).  Clearly, circumstances changed significantly here when Jim took leave on 10 occasions even though his certification estimated it should only be four.

Rather than request recertification, however, FMG took an entirely different approach: 1) it didn’t send Jim a notice that recertification was required; 2) instead, it inappropriately contacted Jim’s doctor directly to seek certification; and 3) it did not ask the doctor to certify that the additional absences were due to Jim’s serious medical condition.  In fact, FMG didn’t seek recertification at all.  It merely asked that the doctor confirm his previous certification.  Based on the doctor’s ambiguous response, it is unclear whether the doctor even understood the employer’s request.

Consequently, the court determined that there was enough evidence for a jury to decide whether FMG interfered with Jim’s FMLA rights.  Hansen v. Fincantieri Marine Group (pdf)

Insights for Employers

What should FMG have done here?  Several items are worth noting:

  1. When the frequency or duration of the employee’s absence(s) change substantially, the regulations give the employer the right to seek recertification.  Here, however, FMG simply asked the doctor to confirm the previous certification, but without any context.  As the court properly pointed out, FMG should have provided Dr. Post with a record of Jim’s pattern of absences and asked whether Jim’s serious health condition and need for leave was consistent with such a pattern. 29 C.F.R. § 825.308(e).  It also should have provided Dr. Post with an entirely new certification form to complete.
  2. Employers can contact the health care provider directly without the employee’s permission in the very limited circumstance where the employer is concerned that the employee submitted a falsified certification.  Only then can an employer send a copy of the certification to the health care provider to confirm that he/she actually completed the form.  29 C.F.R. § 825.307(a)  Otherwise, the employer’s communications to the doc should go through the employee.
  3. Do not terminate employment until you have all the relevant documentation back from the employee and his/her health care provider.  In this case, the court seemed irked by the employer’s rush to terminate Jim without having all the information clarified by his doctor.
  4. Be careful about seeking recertification too early.  To quote the court, “an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule.” The change in frequency here was significant, so recertification was warranted.  However, be careful of seeking recertification when the employee simply ticks past the absence estimate.  According to the regulations, the change in frequency or duration must be significant before doing so.
  5. Remember employers!  You are on the hook for the mistakes of your third party administrator. Where, as here, a TPA is involved in your leave management, it is critical that you have the highest confidence in their ability to administer FMLA leave. Take the time now for your employment attorney to review your leave procedures, including those established by the TPA. Based on facts identified by the court, the TPA’s actions in this case created risk for the employer, ultimately leaving it exposed heading into trial.