Excess FMLA Absences: An Employer Success Story

Posted on: November 13, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

November 13, 2019

 

What can an employer do when an employee takes intermittent FMLA leave in excess of the frequency and duration authorized by the health care provider’s certification?  In a good case for employers, one court has explicitly upheld disciplinary measures taken when an employee exceeded her approved absences, resulting in violations of the employer’s attendance policy.  But it was a multi-step process to get there.  Here’s the story:

Tori’s FMLA certification.  Employee Tori Evans worked as an administrative assistant for Cooperative Response Center, Inc., an alarm monitoring service.  After several years of employment (and a pretty dismal attendance record, by the way) she developed reactive arthritis and needed occasional time off for medical treatments and flare-ups.  There is no question in the case that her condition was real.  Tori requested FMLA leave and returned a certification from her health care provider supporting FMLA leave for up to 2 half days per month for medical appointments, and 2 full days per month for flare-ups.  The provider described her symptoms as “GI illness, oral lesions, and joint pains.”  CRC approved Tori’s FMLA leave in accordance with the provider’s certification.

Then what happened?  Tori began reporting absences in excess of her FMLA certification frequency and duration.  CRC’s progressive attendance policy provided for increasing levels of discipline for unexcused absences, culminating in termination for 10 attendance points over a rolling 12-month period.  CRC warned Tori of the possible consequences of absences beyond the approved certification.  Then CRC followed the FMLA recertification process (29 C.F.R. § 825.308), asking her doctor to verify the appropriate frequency and duration based on her condition.  In the section of the new cert form addressing the frequency and duration Tori needed for appointments and flare-ups, the doctor wrote, “Refer to prior FMLA form.” Based on this and other events, CRC assessed 6 points for absences in excess of her FMLA certification; 2 points for requesting FMLA absences for a medical condition not covered by her certification; 1 point for Tori’s failure to follow CRC’s dual absence reporting procedure; and 1.5 points for another absence due to a medical condition not related to her reactive arthritis. 

Total:  10.5 attendance points.  Result:  termination.  Next step:  lawsuit.

What CRC did right.  CRC’s management of Tori’s FMLA leave and her attendance problems was near picture perfect:

  • CRC warned Tori of the consequences of excessive absences (presumably in addition to having its policy
    in writing and available to employees).
  • When Tori began to exceed the parameters of her certification, CRC went back to her provider, following
    the recert process, and obtained verification that the original frequency and duration were still correct.
  • CRC carefully analyzed Tori’s reported reasons for absence to verify whether they were covered by her
    FMLA cert. For example, once she reported an absence of 2 days because her “knee gave out,” which was
    not a symptom of her reactive arthritis as stated by her provider in her original certification.  Other times
    she reported she had “lost her voice” and had a fever and was aching everywhere. On these last two
    occurrences Tori did not relate them to her approved FMLA, in violation of 29 C.F.R. § 825.303(b)
    (until her lawsuit, that is):

When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.

  • CRC enforced its dual absence reporting procedure and assessed an attendance point when Tori reported
    an absence to her supervisor for work coverage but not to HR for FMLA purposes. The courts have
    generally accepted that an employer may require an employee to report an FMLA-covered absence to
    2 sources.  (See our prior blog post on this topic here.)

What’s missing?  It is important to remember that the FMLA regulations indicate a provider’s assessment of frequency and duration for an intermittent leave is an estimate only.  See 29 C.F.R. § 825.306(a)(5)-(8) (e.g., the certificate must contain “an estimate of the frequency and duration of the episodes of incapacity”).   The court did not acknowledge the estimate issue in its opinion.  One suspects that the result would be the same, as Tori had 6 absences in excess of her certification approval.  Nonetheless, employers should not jump to attendance discipline on the basis of just 1 or 2 excess absences. 

Remember, too, that this is just one case – and a district court case at that.  As such, it is not binding on any other courts outside of the federal district of Minnesota.  However, the analysis is sound and provides a good roadmap for handling those excess FMLA absences beyond the estimated frequency and duration.

Pings for employers.   As an employer, you can tightly monitor and assess an employee’s specific absences to ensure they are within the scope of an approved FMLA leave and comply with your absence policies:

  • Enforce company and FMLA reporting procedures
  • Watch the frequency and duration of the employee’s absences
  • Seek recertification when an employee’s absences exceed the certification’s frequency and duration
  • Apply consequences for unexcused/non-FMLA absences

But remember to:

  • Be consistent in applying your policies to FMLA and non-FMLA situations
  • Give a little leeway regarding an employee’s absences – the provider’s certification is an estimate only

The case is Evans v. Cooperative Response Center from the federal court for the District of Minnesota.

Thanks to my fellow blogger Jeff Nowak (and his source!) for bringing this case to my attention.  You can read his take on the case here.

MATRIX CAN HELP!  Are your FMLA procedures up to snuff like CRC’s?  Matrix can help you avoid FMLA pitfalls and follow compliant procedures to manage difficult situations.  We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us through your Matrix or Reliance Standard account manager or at ping@matrixcos.com.

 

FMLA and Employee Dual-Notice Procedures – Stand Your Ground but Be Clear about Your Policies

Posted on: September 16, 2019 0

A collaborative post by:

Gail Cohen, Director, Employment Law and Compliance, Matrix Absence Management
Marti Cardi, Vice President Product Compliance, Matrix Absence Management
Megan Holstein, Senior Vice President, Absence & Claims, Fineos


September 16, 2019

 

QUESTION:  Can an employer require an employee taking FMLA leave to report absences to both a supervisor and a leave administrator?

ANSWER:  It depends – but probably yes.  Read on!

 

The Issue

Employers are struggling with the trend in rising  employment time off benefits caused by the numerous new state laws requiring job-protected leave and increasing company leave benefits due to competition for workers.  In response, many employers have strengthened their absence policies. Whether the employer outsources absence management or insources with a centralized administrative or human resources (HR) department, an employee must provide notification that they need time off in order for that leave to be approved and not counted against the employee’s attendance record.

The federal Family and Medical Leave Act (FMLA) regulations address employee notification by requiring an employee to “comply with the employer’s usual and customary notice requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. §825.302(d); §29 C.F.R. 303(c). The FMLA supports employers who have a reporting notice policy by allowing an employer to delay or deny FMLA leave if an employee does not comply with the employer’s policy and no usual circumstances justify the failure to do so. Accordingly, many employers’ absence notice requirements or FMLA policies require an employee to contact both a supervisor and a centralized absence administration office, whether that is an internal HR or Benefits department or outsourced to a third party administrator (TPA); otherwise known as a dual-notice, or two-party call in policy or procedure.

Employees have contested dual-notice policies in court claiming they violate the FMLA by interfering with their right to take FMLA leave. Courts have historically supported employers dual-notice policies. However, a recent Alabama district court decision, LaShondra Moore v. GPS Hospitality Partners IV, LLC,  declined to follow other courts’ support and instead found that an employer’s dual-notice policy that required employees to contact both HR and their manager when reporting absences violated the FMLA. While this decision is an outlier, there are still lessons to learn from the case. Read on to learn more about courts’ approaches to dual-notice policies and whether the DOL might weigh in.

Bad Facts Make Bad Law. LaShondra Moore worked for a Burger King franchise that was one of nearly 200 purchased by GPS.  The new owner required the employees of the purchased locations to complete new paperwork, including reviewing and acknowledging the employee handbook.  The handbook included GPS’s FMLA policy and the requirement to report FMLA absences to store managers and to the centralized HR office.  When Moore’s mother became ill and was hospitalized, she informed her manager multiple times of her need to take time off from work to care for her mother. In spite of awareness that Moore’s absences were the result of her mother’s hospitalization, Moore’s manager issued disciplinary action and ultimately terminated her due to these absences.

Ms. Moore sued for FMLA interference in federal court. GPS based its defense on its employee handbook, which set forth an FMLA policy requiring the employee to notify their supervisor and HR of their need for FMLA leave.

The Court’s Approach to GPS’s Dual-Notice policy. Citing the FMLA notice regulations allowing an employer to require an employee to comply with its notice requirements for requesting leave, the court took great exception to the notion that GPS’s policy required employees to do more – notify both a supervisor and HR – to request FMLA than other types of leave. Essentially, the court found that employers can only maintain a dual notice reporting policy only if the policy applies to all types of leave requests, not just FMLA.

This Case is an Outlier. Several courts that have heard claims by employees who have been disciplined for not following their employer’s dual reporting policies have drawn conclusions opposite to the Moore court. Here is a sampling of those cases:

  • 3rd Circuit – E.D. Pennsylvania- IBW v. PPL Electric Utilities Corp. (December 2017) – Relying on the Acker case
    (discussed below) and concluding no FMLA violation in connection with employer policy requiring employees
    to report absences to their supervisor and “make a three to five minute phone call to a third party administrator.”
  • 5th CircuitAcker v. General Motors, LLC (April 2017) – Judgment in favor of the employer on FMLA interference
    and retaliation claims when employee failed to follow GM call-in procedures, of which he was reminded by
    GM’s TPA. In doing so, the court noted that “[f]ormal notice of absence policies serve an employer’s legitimate
    business interests in keeping apprised of its employees and ensuring that it has an adequate workforce to
    carry out its normal operations.”
  • 6th Circuit Srouder v. Dana Light Axle Mfg. (2013) – Sixth Circuit affirmed judgment in the employer’s favor
    on an interference claim and that the termination of the plaintiff’s employment was appropriate because he
    failed to comply with the employer’s call-in policies.
  • Also in the Sixth Circuit, Alexander v. Kellogg USA Inc., (January 6, 2017), the court again rejected an FMLA
    interference claim challenging the termination of employment on the basis of the plaintiff’s failure to report
    intermittent FMLA absences to both his employer and its TPA.
  • 7th Circuit – N.D. Indiana– Reese v. Zimmer Production, Inc. (September 2018) – The court concluded that the
    employee failed to comply with his employer’s policy, which required him to notify his supervisor and the
    company’s TPA to initiate a request for FMLA.
  • 9th CircuitDuran v. Stock Building Supply West, LLC (January 2017) – The court held that the employee’s
    failure to complete an internal LOA request form and provide certification to the employer’s TPA, both
    mandated by its customary notice policies, doomed his FMLA/CFRA interference and retaliation claims.

Also in the 9th Circuit, the most recent case – Rozairo v. Wells Fargo (D. Oregon, July 17, 2019) in which the court relied on the employer’s policy requiring employees to discuss their request for leave with their manager and call its TPA, finding the employee who failed to comply with that policy for initiating leave could not state claims for violations of FMLA or Oregon’s state equivalent, the Oregon Family Leave Act.

Will the U.S. Department of Labor (DOL) Weigh In?

The DOL announced that it is considering revising the FMLA regulations by announcing its plans to publish a request for information (RFI) next spring to solicit comments to improve the FMLA regulations in two ways:

  1. Better protect workers; and
  2. Reduce employers’ FMLA compliance and administrative burdens.

We think this area of the FMLA regulations governing an employer’s ability to set forth absence notice policies and procedures is ripe for further clarification.

For more information regarding the DOL’s plan to publish a RFI, check out co-author Megan Holstein’s earlier blog here and our friend Jeff Nowak’s blog here.

Pings for Employers:

  • The weight of authority supports that an employer can require employees to report FMLA absences to
    two sources.
  • But, it may not enough to simply place your absence request policy in the employment handbook.
    Employers should broadcast the policy in ways employees can access it, including:

    • highlight the policy on a company intranet and send email reminders;
    • post the policy and FMLA posters in the breakroom and any other venue in which employees may
      congregate;
    • consider holding informational meetings about all of your benefits, including FMLA and other leave
      benefits and how to request the time off; and
    • if using a TPA, engage the TPA as a source and additional reason for further outreach to employees.
      Make sure they understand who your TPA is, what purposes they serve, and how to contact the TPA.
  • Keep your dual-notice policy simple and clear. Do not require employees to be FMLA, state leave, or
    benefits experts to navigate your policy. They don’t need to know when leave is FMLA and therefore
    the TPA must be contacted or, for example, when it’s a common cold and only a manager needs notification.
    Instead, streamline the policy to notice categories such as reasons for leave (e.g., vacation, care of family
    member, employee illness, parental leave, etc.) and/or duration of leave (e.g., absences of fewer or
    more than 3 days).
  • On the other hand, do train your manager to be issue spotters and recognize when an employee’s request
    might be time off for an FMLA-qualifying reason. Managers not only need to spot when a request may be
    covered by the FMLA, but they must know the reporting policy and be able to inform the employee how to
    correctly report an absence under the policy so that the request can be evaluated by the right people, such
    as a TPA or HR.  Then teach them to hand the issue off to those right people and not try to handle it
    themselves – they should be grateful for that!

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

The DOL Gets Busy – New Opinion Letter, New Draft FMLA Cert Forms!

Posted on: August 13, 2019 0

By Marti Cardi, Vice President Product Compliance

August 13, 2019

 

The Department of Labor rolled out two new developments last week just in time to leave for August vacations:  First, a new opinion letter addressing whether FMLA covers time taken for specialized child educational meetings; and second, drafts of new (and improved) FMLA certification forms for public comment.

Let’s dig in!

DOL Opinion Letter FMLA2019-2-A – Meetings for Child’s Individualized Educational Program

On August 8, 2019, the DOL released Opinion Letter FMLA2019-2-A relating to whether attending a meeting to discuss a child’s Individualized Education Program (IEP) qualifies as FMLA leave. 

 

A bit of background:  The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a child who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others. 

The individual who requested the opinion letter explained the situation as follows

You explain that your children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress. You explain that these meetings include participation by “a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the … child under the child’s IEP,” as well as teachers and school administrators. These participants provide updates regarding your children’s progress and areas of concern; review recommendations made by your children’s doctors; review any new test results; and may make recommendations for additional therapy. You ask if your wife may use intermittent FMLA leave for the care of a child to attend these meetings.

I include these details here so it is clear that these are not your everyday parent-teacher conferences or disciplinary meetings – which would generally not be covered by FMLA.

The DOL determined that these meetings did in fact qualify for FMLA intermittent leave.  The wife’s (mother’s) attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition” under 29 C.F.R. § 825.100(a).  And, care for a family member can include “mak[ing] arrangements for changes in care.”  Such FMLA coverage does not require the child’s doctor to be present nor require that the child be receiving treatment at the meetings – providing “care” is sufficient.

Pings for Employers.  Be sure to read my friend Jeff Nowak’s more detailed post on his blog, FMLA Insights. Jeff provides some excellent tips for employers that you will want to heed – including, of course, training your supervisors!

But in a nutshell:  When an employee requests leave to attend meetings relating to the care of a family member (here, a child in specialized education, but it could also be an elderly parent receiving detailed medical treatment), take time to analyze the situation carefully.  Think broadly; don’t just deny the FMLA request because the family member’s condition falls outside our usual concept of a “serious health condition” or because the meeting doesn’t seem to fit within FMLA protection. 

At Matrix our claims examiners have been alerted to this new opinion letter and its significance.  If we receive a request for time off for meetings relating to care of a family member, we will analyze the request for FMLA intermittent leave correctly and obtain appropriate documentation even when the meeting seems at first glance not to be an FMLA-qualifying event.   

 

New Draft FMLA Certification Forms – Now That’s Exciting!

Oh boy, oh boy, oh boy!  New cert forms!  And a chance to comment!  What more could an FMLA geek ask for to relieve the summer doldrums?

Seriously, this is a welcome step in FMLA-Land.  The current certification forms tend to be cumbersome and, in our experience, often don’t yield all the information the regulations entitle employers to receive.  On August 7 the DOL issued a press release explaining the goal of the new forms:

The revisions will make the forms easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave. The revisions will increase compliance with the law, improve customer service, and improve the administration of the law. WHD drafted the revisions with input from the public in letters, interviews, and public meetings….

The changes will reduce the time it takes a health care provider to provide information, and help leave administrators review and communicate information to employees more directly and clearly, reducing violations.

What’s the status?  The DOL is soliciting public comments on the proposed forms by 11:59 p.m. on October 4, 2019.  The official notice was published in the Federal Register and includes directions for submitting comments. After that date, the DOL will consider the comments received and – eventually – issue new final forms.  There is no timeline for final action by the DOL and, although unlikely, they could decide not to change the forms from the current versions.  Until new forms are officially adopted, the current forms remain approved by the DOL but still optional.  With an expiration date on the current forms of August 31, 2021, the DOL has lots of time!

What are the changes?  The changes are summarized by the DOL as:

  • Fewer questions requiring written responses; replaced by statements that can be verified by simply
    checking a box [These are the best changes, in our humble opinion.  They should result in fewer
    inconsistencies within the form and less confusion regarding the frequency and duration for intermittent
    leave.]
  • Reorganization of medical certification forms to more quickly determine if a medical condition is a
    serious health condition as defined by the FMLA
  • Clarifications to reduce the demand on health care providers for follow-up information
  • More information on the notification forms to better communicate specific information about leave
    conditions to employees
  • Changes to the qualifying exigency certification form to provide clarity to employees about what
    information is required
  • Changes to the military caregiver leave forms to improve consistency and ease of use
  • Layout and style changes to reduce blank space and improve readability

Here are the revised forms, with links for your viewing pleasure:

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility of Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

What is Matrix Doing?  Several years ago, we at Matrix designed our own certification forms for FMLA leave necessitated by the employee’s or a family member’s serious health condition.  Like the newly proposed DOL revisions, we adopted a simpler means of identifying the type of serious health condition involved with a check-the-box format and reconfigured the questions about leave parameters, including frequency and duration of episodes for intermittent leave.  As the DOL is now hoping, these resulted in significantly clearer provider responses and much less need for follow-up and clarification.

We will review the DOL’s proposed forms and submit comments by the deadline.  If you would like to share with us your own thoughts on the draft forms, please do so!  Once the forms are finalized we will evaluate whether they have gone far enough to simplify leave management and consider using the DOL forms going forward. 

MATRIX CAN HELP!

At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day.  Our claims examiners are experts in reviewing FMLA certification forms to ensure we have received all the information the employer is entitled to and that it is clear and makes sense.  Want to harness that expertise? Contact us at ping@matrixcos.com or through your Account Manager.

FMLA 2nd and 3rd Opinion Process: A powerful tool to manage intermittent FMLA

Posted on: July 29, 2019 0

By Gail I. Cohen, Director, Employment Law & Compliance

July 29, 2019

Readers of DMEC @Work Magazine know I have been writing a series of articles on recommended best practices using the 2nd and 3rd opinion process to manage intermittent FMLA leave.  Readers of this blog who have not read my articles (tsk tsk…as if!), well you are in luck because today’s blog post will be a Cliff Notes™ version summarizing the key takeaways from each of those articles!

 

January 2019 Issue: When Can an Employer Request a 2nd Opinion and Why Would I Want to Spend Money to Get One?

An employer can only request the employee attend a 2nd opinion before approving FMLA leave for the employee’s or family member’s “serious health condition,” in connection with a new leave request, or initial certification at the start of a leave year.

Strategic use of the 2nd opinion process is a good investment for employers. The advantages we have seen include the “grapevine effect” in the workplace, organically increasing employee awareness that you are managing leave usage. This increased awareness can often result in reduced frequency and duration of employee leaves.

 

March 2019 Issue: What Does it Mean to Have “Reason to Doubt the Validity” of an Employee’s Certification?

The FMLA for an employer “who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense.” (29 C.F.R. §825.307(b)) Like so many things about the FMLA, there is no definition of what would provide employers with that “reason to doubt.”  At Matrix, we spend a lot of time thinking about things like this! Some of the (perhaps obvious?) circumstances we have identified that warrant an employer to consider pursuing a 2nd opinion include:

  • clearly excessive leave parameters in the employee’s certification for the condition;
  • leave certified by a healthcare provider that does not seem appropriate for the condition
    (e.g., an ophthalmologist certifying depression); and
  • a healthcare provider certifying leave for an employee who is a relative or close friend.

 

May 2019 Issue: Use of Onsite Medical Personnel in Evaluating Whether to Pursue a 2nd or 3rd Opinion

Many employers have onsite medical personnel, or doctors with whom they have a relationship, who can be consulted in connection with the decision whether or not to seek a 2nd opinion. These personnel are prohibited by FMLA regulations from actually performing the 2nd opinion exam, but it does not mean they cannot otherwise be helpful. For example, when you read the employee’s certification and you identify that the frequency and/or duration of estimated leave seems excessive, a medical provider can add heft to that decision by reviewing it as well to confirm (or contradict!) your impression.

 

July 2019 Issue: What Does it Mean to Act in Good Faith in the 2nd/3rd Opinion Process?

Once the 2nd opinion results are received, if the results differ from the employee’s certification, the employer has a choice to either:

  1. accept the employee’s certification and manage the leave to those parameters; or
  2. send the employee to a 3rd opinion, again at employer expense.

If the employer elects to require a 3rd opinion, the regulations require the employer and employee to “act in good faith” in the selection of the 3rd opinion provider; but again, they don’t tell you what that means! We think a process that meets this standard includes the employer proposing 2-3 providers whose specialty is appropriate for the employee’s condition and whose offices are located in the employee’s general vicinity.  Like the 2nd opinion provider, the 3rd opinion provider can’t be someone the employer has previously consulted.

The employee is then given the option of selecting one of the employer’s suggested doctors, or identifying one or more of his own choice – with the same criteria that the employee’s doctor be in an appropriate specialty and with whom he has not previously consulted.

 

More to Come!

There are two more articles in my series that will be published in September and December: In the September issue, I will discuss best practices for what an employer should do about any absences the employee reports while the 2nd/3rd opinion process is pending.  My final column will give guidance to employers on other issues unanswered by the regulations, such as how long the employer can rely on 3rd opinion results.

 

Read the Full Articles.  You can read my column articles here at DMEC.org.  If your organization isn’t already a DMEC member, here’s another reason to join!

 

MATRIX CAN HELP!

At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day and have seen firsthand how thoughtful, strategic use of the 2nd/3rd opinion process can lead to beneficial results.  Want to harness that expertise? Contact us at ping@matrix.com or through your Account Manager.

 

Falsified FMLA Certifications? Employer Doesn’t Have to be Inspector Clouseau to Support Honest Belief Defense!

Posted on: April 2, 2019 0

By Gail Cohen, Director Employment Law & Compliance

April 2, 2019

 

Marion Egler was employed as a Reservations Agent for American Airlines.  From 2006 through 2013, she applied and was approved for, FMLA on thirty-four separate occasions.  In November and December 2014, Egler submitted four certification forms for continuous blocks of time that appeared to have been “whited out and/or written over.”  The FMLA regulations allow an employer to authenticate a certification form, by providing a copy to the provider and asking for verification that the information supplied was completed or authorized by the provider who signed it.  As a result of the apparent alteration of those forms, American sought authentication of the certifications and was advised by the doctor that it was not completed or signed by that provider or anyone else in his office.

Egler was confronted with these discrepancies and denied knowing anything about the forms being altered. Egler wrote a statement (she later claimed under duress) in which she indicated she understood her leave was being questioned and that while she understood the forms appeared to have been altered, she indicated she’d be following up with her doctor’s office because “she [couldn’t] speculate.” She was placed on a paid suspension and invited to submit any additional information to clarify the discrepancies.  When she did not do so, American fired her for altering FMLA forms, a violation of the company’s Code of Conduct.

Egler appealed her termination using the company’s process to do so, claiming she was “not guilty,” and had not been given the resources and time to defend herself. She submitted two additional letters purporting to come from the provider’s office. He reiterated that neither he nor anyone else in his office completed this documentation. As a result, the company upheld the decision to terminate her employment on appeal.  Egler sued American alleging, among other things, FMLA interference and retaliation.

The court quickly disposed of her FMLA interference claim because American granted her all the leave she had requested and moved on to the retaliation claim.  In evaluating that claim, the court elaborated that it is Egler’s burden to undermine American’s “honest belief,” meaning, presenting evidence that American did not honestly believe she had broken its conduct rules by submitting altered FMLA certifications.  While Egler herself “emphatically denied [she] alter[ed] the forms,” and challenged whether American had shown that she had done so, that is not the standard.  It is not the role of the court to decide that the reason given for the employer’s decision was “wise, fair or even correct;” it is Egler’s burden, as the plaintiff, to demonstrate that the reason for American’s decision was false, dishonest or more likely the result of retaliation. Her own self-assessment was not enough.

American went to her doctor, just as the FMLA allowed it to do, and had substantiated that the forms were not authentic. Armed with this information, and a good faith investigation that allowed Egler to be heard, American acted on its honest belief she violated its rules and prevailed on summary judgment.

You can read more here: Egler v American Airlines, E.D. North Carolina (February 21, 2019)  

 

PINGS FOR EMPLOYERS – What American Did Right

  • They had a written policy addressing falsification or fraud in the FMLA process
  • They allowed employee to take the leave, then reinstated her and dealt with
    the fraud issue separately.
  • They didn’t deal with the fraud issue until their investigation was complete. In
    connection with their investigation, they used the tools the FMLA affords employers
    like seeking authentication of medical information and/or certification forms that
    appear to be altered.

 

If you just can’t get enough of FMLA certifications (and let’s face it, at least it’s not Paid Family Leave!) you might want to check out the 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR. On May 8 our very own Gail Cohen and fellow legal eagle and blogger extraordinaire  Jeff Nowak will present Medical Certifications: How to Maximize one of the FMLA’s Most Important Tools. Don’t miss it!


Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.