Labor & Employment Law

Incomplete medical certification is not a ?negative? certification for the purposes of the FMLA

In Verkade v. US Postal Service, No. 09-1268 (6th Cir. May 27, 2010), the Court rejected the determination of the trial court that the USPS was entitled to rely on prior incomplete medical certifications as negative certifications to deny Verkade's request for FMLA leave. The Court found that an incomplete medical certification is not the same thing as a negative certification.

The difference is important because an employer may rely on a negative certification to deny an employee's request for FMLA leave.

A "negative certification" is one that is complete, but that "facially demonstrates that the absence was not FMLA-qualifying" [Stoops v. One Call Commc'ns, Inc., 141 F.3d 309, 311 (6th Cir. 2006)].

For example, a certification that indicated that the employee would not need to be absent from work is a "negative certification." The certifications in Verkade were not invalid; rather they were incomplete and lacked sufficient information to make a determination whether the condition was FMLA-qualifying. The Court went on to affirm the award of summary judgment in favor of the Postal Service on other grounds.

A second noteworthy aspect of the decision involves the Court's determination that five days afforded Verkade a reasonable opportunity to cure the cited deficiencies in one of the medical certifications he submitted. The Court found five days reasonable in light of the extensive "history of Verkade's interaction" with the Postal Service FMLA Office, including multiple prior notices detailing the deficiencies with the prior, substantively identical certifications he submitted.

Mr. Bosland Comment: The decision teaches: (1) employers may not rely on incomplete certifications as "negative certifications" to deny FMLA leave; and (2) the calculation of a reasonable period to cure medical certification deficiencies may be influenced (e.g., lengthened or shortened) by the employee's prior awareness of what is required to submit a complete, valid medical certification to support FMLA leave.

The decision is based on version of the FMLA regulations that was superseded by revised regulations that went into effect on January 16, 2009. Under the revised regulations, the employer must give an employee at least seven calendar days to cure identified deficiencies. If seven days is not practicable despite the employee's good faith efforts, the employer must provide an unspecified amount of additional time. If the employee fails to cure the deficiencies within the seven days (or longer, if impracticable), the employer may deny the taking of FMLA leave. See 29 CFR 825.305(c).

With respect to the calculation of a reasonable period to cure certification deficiencies, the Verkade decision should remain viable where it is not practicable for an employee to cure deficiencies within seven calendar days.

Full post as published by New York Public Personnel Law on June 08, 2010 (boomark / email).