Want a glimpse into a world where an employer fails to maintain a legally compliant leave management process? Let me warn you — what you are about to read is not pretty and not for the faint of heart.
Rachna was a resident physician at St. Vincent Health Center. She also had a chronic heart condition known as superventricular tachycardia (SVT) which caused a rapid heart beat, light-headedness and dizziness. It also caused her to lose consciousness on several occasions. Serious health condition? Ummm, yes.
On June 1, Rachna requested a leave of absence to undergo surgery to address the SVT. When Rachna met with HR to discuss her need for leave, the HR representative arbitrarily assigned her a return to work date of June 24. When Rachna told her that she’d likely need a little more time to recover, the HR rep agreed to push the return back two days — to June 26. The medical certification from Rachna’s physician did not contain an anticipated return to work date or an explanation of the duties Rachna could not perform. However, HR did not follow up with Rachna to ensure she cured the certification and it did not provide her an FMLA designation notice.
Rachna had surgery and, on June 27, she called HR (and later, her boss) to extend her medical leave. Again, her return date remained up in the air while she awaited clearance from her physician. At that time, HR did not ask Rachna to provide recertification of her need for leave. Instead, on July 11, a new HR representative overseeing Rachna’s leave of absence sent Rachna a letter asking her to provide a “receipt of an extension [of her leave of absence] from her physician” and to provide it by the end of that same week. One week later, on July 18, when she did not hear from Rachna, the HR rep sent an email to Rachna asking her physician to “fax a statement extending your medical leave” through the end of July.
Beginning on July 18, Rachna left a series of voicemails for her physician seeking to obtain documentation supporting her extended leave. According to Rachna, her physician would not speak with her and did not respond to her voicemails. In late July, Rachna contacted her direct supervisor to report that she was having difficulty reaching her physician to obtain the appropriate medical documentation.
Just a few days later, on August 1, the Health Center terminated Rachna as a resident physician.
Insights for Employers
Where did the employer go wrong? Let us count the ways, so said the court. In a sobering court opinion, the trial court refused to dismiss Rachna’s FMLA interference and retaliation claims, sending them instead to a jury trial. Patel v. St. Vincent Health Center (pdf) Of course, these facts explain the employee/plaintiff’s side of the story, and the employer will have an opportunity to present evidence in support of its case at trial. But let’s identify in the meantime where the Health Center apparently fell short on compliance:
1. When Rachna sought a leave of absence, the HR rep assigned an arbitrary return to work date instead of obtaining the information directly from the certification.
2. When Rachna’s physician did not provide a complete and adequate certification, the employer did not seek to cure the certification and obtain the information necessary to make a determination about whether the absence was covered by the FMLA.
3. Instead, the employer compounded the problem by failing to issue a recertification request when the employee requested an extension of leave. Who knew if Rachna even required any additional leave? We’ll never know, since the employer issued a vague request seeking a note from the employee’s physician supporting an extension, and it gave her fewer than five days to provide it. In these instances, the regulations are clear: when the employee seeks an extension of leave, the employer should issue a request for recertification and provide the consequences for failing to provide recertification. It also must give the employee up to 15 days to return the certification (fewer than five days just won’t do). When the employer fails to issue a recertification request in these instances, its leave management processes are not compliant, and they create liability for the employer.
4. When the employer had enough information to determine whether FMLA applied, it was obligated to provide the employee a Designation Notice. It didn’t do so here, which is yet another compliance error.
5. Under the FMLA, the employee must provide recertification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts. Here, the employee provided enough evidence that she was engaging in good faith efforts to communicate with her physician to obtain an updated recertification. Yet, the employer declined to engage her further. Recall a previous post here where I outlined what an employer can do to determine whether the employee has done all she can to provide certification.
In the end, there apparently were so many holes in the employer’s FMLA administration that the court refused to dismiss not only the employee’s FMLA interference claim, but the FMLA retaliation claim, since the employee could provide evidence that that the employer’s reason for termination was mere pretext for firing her.
Leave management compliance is essential. Tough lesson for this employer.