Confusing Medical Certification - Employer Survives FMLA Claim
by Michael Fox
Hoffman v. Professional Med Team (6th Cir. 1/7/05) [pdf] strikes me as an example of the litigation over the FMLA that more employers will soon be experiencing. Lynn Hoffman, an EMT with migraine headaches, had in place a medical certification that allowed her to take intermittent leave due to the unpredictable nature of onset of the headaches. After about a year, the employer (after consulting with counsel) requested an updated form noting her first contained an inconsistency. Hoffman returned the standard DOL approved form (WH-380), answering question 5a that the migraines would cause "intermittent short term disabilities", but answering question 5b, "Will it be ncesary for the employee to take work only intermittently or to work on less than full schedule as a result of the condition?", no.
After further consultation with their counsel, PMT advised Hoffman there was a contradiction between these two answers and asked her to submit a corrected form. When she declined, PMT told her it considered her request for FMLA leave canceled. More than six months later Hoffman missed several days work because of migraines. This resulted in another letter from PMT, "registering ... concern over the 'increasing frequency' of her absences and questioning whether the migraines were interfering with her job duties." It also required that she submit for a fitness for duty examination which she did.
When she brought the doctor's note that she was fit to work without restrictions she waved the note in her supervisor's face with the admonishment to "quit fucking with her." The next day she returned to pick up her pay check and found she had not been paid for the migraine related absences. She went to her supervisor's office to object and again told him to "quit fucking with her" and to "leave her alone." He ordered her to leave the building and suspended her that day. Two weeks later she was fired for using profanity towards her supervisor.
Two years and two months later she sued asserting both that her rights had been interfered with when she was denied a leave, and that her termination was in retaliation for her exercise of rights under the FMLA. After a bench trial, the court found that the employer was reasonable in rejecting her request for leave and did not willfully violate the FMLA when it terminated her. Finding no clear error on either finding, the 6th Circuit affirmed.
The Equal Employment Advisory Commission which filed an amicus brief argued for a ruling that an employer was entitled to rely on a negative certification without taking any further action. Unfortunately, the ruling was not that clear. Instead, the court's decision turned on her failure to bring suit within 2 years, which required that she show her employer willfully violated the FMLA. Joining with other circuits and its own prior unpublished decision, the Court adopted the FLSA standard for willfulness set out in the Supreme Court's Richland Shoe decision.
In resolving her claim, the Court noted part of the problem was a discrepancy between the DOL's regulation and its form (WH-380):
The form tracks the language of the statute and implementing regulations, with one exception: While the regulation requires that intermittent leave applicants establish the medical necessity of “tak[ing] leave intermittently,” question 5.b on the form asks whether it will be medically necessary for the employee to “take work only intermittently or to work on a less than full schedule. . .” Id. § 825.306(b)(2)(ii); Form WH-380.
It was that very language which led the employer to find a contradiction in her certification. Hoffman explained that the reason she did not believe (or want to answer) "Yes" to the question whether she could work only intermittently or less than a full schedule was that she feared PMT would use a "yes" answer to reduce her to part time and ultimately fire her.
Relying on the heightend standard for willfullness, the Court found that the employer's view of being confused by the form and the regulation was sincere, and also cited the employer's consultation with counsel as important in precluding a finding that the employer willfully violated her rights in not allowing her leave. Although the question of whether she was terminated in retaliation for exercising her rights was perhaps a closer question, the appeals court relied on the trial court's role "[a]s finder of fact," finding "[it] was uniquely positioned to sort out these conflicting implications," and its holding was not clearly erroneous.
Although not certain, it seems quite possible if the suit had been filed three months earlier the result would have been different, or certainly a lot closer. This case seems further proof as I noted less than a month ago in this post
, that the FMLA is now coming of age, which means more reported decisions, which in turn will lead to more cases. For those employers who have viewed the FMLA primarily as a hassle, not a source of litigation, be forewarned. The FMLA has arrived.