Be VERY CLEAR In Your Communications About FMLA!

By Fiona W. Ong - Shawe Rosenthal LLP

April 17, 2019

I often tell my crazy teenagers that it doesn’t matter what you mean to say – it matters what the other person actually hears. (I’m not sure they actually hear me when I say that…) And a recent Family and Medical Leave Act case proves my point and provides a lesson for employers. Curlee v. Lewis Bros. Bakeries Inc. of Tennessee highlights the need for employers to be very careful and very clear in their verbal communications with employees about Family and Medical Leave Act obligations.

The plaintiff was a bakery worker subject to a collective bargaining agreement that provided for the accumulation of points due to absences (not including FMLA and other statutory leaves), with termination occurring at 100 points. The worker, who had 95 points, was diagnosed with prostate cancer. On September 12, he spoke with the Human Resources manager about his need to leave early that day for an appointment with his doctor, as well as his anticipated need for leave for treatment. The HR manager gave him FMLA forms for the doctor to complete and conditionally approved his early departure as FMLA-covered.

The following week, on September 19, the worker again left early and met with a different doctor. He then followed up with the HR manager the next day about his upcoming treatment with that second doctor. The HR manager told him that she “would take care of” the medical certification for the new doctor, and she faxed the FMLA forms to the doctor.

Several weeks later, the worker was notified that he was being terminated for his attendance violations, at which time he realized that the FMLA forms had not been returned by his doctor within the statutory 15-day timeframe for the submission of the medical certification. He contacted the doctor, who then submitted the form covering the September 19 absence and his upcoming need for leave. The employer nonetheless upheld the termination because the form was late and it did not cover the September 12 absence for the appointment with a different doctor. The worker then sued for violation of his FMLA rights.

The employer asked the court to throw out the FMLA claims since the certification was untimely submitted, arguing that when the HR manager said she “would take care of” the medical certification, she only meant that she would fax the form to the doctor (which she did). As the court noted (somewhat snarkily), however, “Generally speaking, ‘taking care of’ a required form does not mean faxing it and forgetting about it.” According to the court, a person could reasonably understand and rely on the HR manager’s statement to mean that she would obtain the certification from the doctor. Additionally, the court also found that the statement acted both to toll and to extend the 15-day deadline.

As for the fact that the certification did not cover the September 12 absence, the court noted that the FMLA regulations require that, when an FMLA certification is incomplete or insufficient, the employer must provide written notice and an opportunity for the employee to correct the form. In this case, the employer argued that the form was complete on its face, but the court noted that the context – with the employer’s knowledge that the September 12 absence was also related to the worker’s cancer – meant that the certification was incomplete and/or insufficient as to that absence. Thus, the employer should have provided the worker with written notice and the opportunity to amend the certification.

The court emphasized the fact that “The FMLA regulations envision a cooperative process that balances an employee’s entitlement to leave with the employer’s legitimate interest in performing an informed review of the employee’s request.” And this is one of the lessons that employers should draw from this case – the importance of recognizing when a certification may be considered insufficient or incomplete, taking into account all the circumstances, and following the regulatory requirements for requesting corrections.

And the other lesson? HR managers and other managers involved in the FMLA discussions need to be very clear about what they mean in their verbal communications. Provide concrete steps and expectations, and avoid vague statements like “I’ll take care of it.” It may be wise to follow up in writing by letter or email, just to make sure there is no misunderstanding.