By Marjorie Johnson, J.D.
An employer undisputedly interfered with an employee’s FMLA rights by delaying his reinstatement after he provided a medical release, but triable issues existed as to whether its actions were retaliatory, a federal district court in Utah ruled in granting in part the employee’s partial motion for summary judgment. Though there may have been various deficiencies in his medical documentation, the employer had a duty to request additional certification if it was unsatisfied. Here, it failed to do so, instead merely forwarding the notes to its third-party FMLA administrator who took weeks to follow up (Eagle v. SMG Salt Palace, November 30, 2018, Benson, D.).
Intermittent leave request. The employee contacted his employer’s third-party FMLA administrator in May 2016 to request intermittent FMLA leave for his serious health condition and it eventually approved his request on August 11. On September 1, he sought approval for several absences in August and was advised that the administrator would seek certification from his pulmonary specialist. However, the doctor advised that he would need to have another appointment with the employee.
First return to work allowed. On September 10, the employee gave the HR manager a doctor’s note from an urgent care doctor that released him back to work. He was permitted to return and subsequently visited his specialist on October 11 to request an adjustment to his FMLA form. The doctor agreed to send his notes to the employer and inform them that the amount of time he would need to be out would be an estimate since he did not yet have a clear diagnosis.
Second return denied. The employee began another absence on October 14 that continued through November 3. During that time, he called the FMLA administrator to update his FMLA leave parameters and was advised to have his doctor fax over documentation. When he followed up on October 25 he was told that his doctor had not sent anything over. He then attempted to return to work on November 4 and provided the HR manager with another note from the urgent care doctor releasing him. However, the HR manager told him that the note was insufficient and that he would be out of work until he was released by his treating physician.
Month-long delay. On November 7, he wrote a letter to the HR manager reaffirming that he was ready and able to return. Four days later, he also provided a note from his specialist which released him and invited the employer to contact the office “if any additional information is needed.” The HR manager still didn’t allow him to return to work and instead forwarded the note to the FMLA administrator. On December 1, after multiple emails from the employer, the FMLA administrator agreed to review his status and subsequently advised the employee that he must open a new leave for November and faxed a certification request to his specialist’s office.
The next day, the employee called in a new claim notice and his doctor returned the completed certification and cleared him to return to work. On December 6, the FMLA administrator contacted the doctor and requested confirmation that “there is no need for a reduced work schedule or an absence after 11/3/16.” On December 8, the employee again wrote to HR asking why he had not been allowed to return and describing the certifications he had submitted. The next day, the FMLA administrator informed the employer that his doctor had released him to return. He was reinstated on December 13.
FMLA interference. The employer’s failure to reinstate the employee after he presented the urgent care provider’s medical release and his own doctor’s note constituted unlawful interference with his FMLA rights. Though there were various deficiencies in his documentation when he attempted to return to work on November 4, the issues with his November certification were not clearly related to him at the time he presented the notes, or for weeks thereafter. Rather, his note was referred to the third-party FMLA administrator, which was unresponsive for almost a month following his attempt to return to work.
Employee’s efforts to return. Moreover, the urgent care provider’s note that he gave to the HR manager was virtually identical to the note which had allowed him to return to work just a few months earlier. When he was not permitted to return to work with the latter note, he obtained a second note from his specialist, again stating that he was able to work as of November 4. He wrote two letters to HR asking why his certification was insufficient and made every reasonable effort to provide satisfactory medical certification.
Employer’s non-response. His employer, on the other hand, did not respond to either of his letters and did not contact either the urgent care doctor or his specialist with follow-up questions, despite the invitation to do so from both. Its only affirmative efforts following his November 4 request to return to work were the few emails it sent to its FMLA administer asking for a status update. Indeed, he did not receive any clear guidance regarding the deficiencies in his certification until he was contacted by the administrator in December.
On this record, the court found that the employer had a duty to request additional certification if it was unsatisfied with the certification provided. A month-long delay in that process undisputedly interfered with the employee’s right to return to work following FMLA leave. He could not be required to remain on uncertain unpaid leave for a month “and attempt to divine” his employer’s or the FMLA’s administrator’s “quibbles” with the notes he had provided.
FMLA retaliation. However, triable issues existed as to whether the employer delayed his reinstatement because he made complaints to management regarding his medical certification. Because he didn’t undisputedly demonstrate a causal connection between his letters to the HR manager and the employer’s delay in allowing him to return to work, his motion for summary judgment on his FMLA retaliation claim was denied.
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