Employer May Terminate Employee After Remedial Action for FMLA Noncompliance

In Watson v. Drexel University, the U.S. Court of Appeals for the Third Circuit ruled that an employer may terminate an employee for taking unauthorized leave after the employer had corrected an earlier mistake in its Family and Medical Leave Act (FMLA) certification requirements.

In Watson, an employee requested authorization for FMLA leave for personal illness after providing the required medical certification. The employer consented and later requested recertification but did not comply with Department of Labor regulations when making this request. Federal law requires the employer’s recertification notice to state the “specific expectation” that the employee had to return the new medical recertification. The employer failed to include this statement in the recertification notice and also failed to provide a blank recertification form. 

The employer denied the additional FMLA leave but sent the employee a letter advising her that her recertification was incomplete. In addition, the employer enclosed a blank certification form and instructed her to complete the form and return it within seven days.

The employee ignored the employer’s request and failed to complete the recertification form but still took additional leave. She was terminated and responded by filing a lawsuit alleging that the employer had violated her rights under the FMLA.

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave each year for various reasons, including a serious health condition that prevents the employee from working. The FMLA also prohibits employers from discriminating or retaliating against employees who assert their rights under the FMLA. 

FMLA regulations allow employers to require that their employees “support their requests for leave with a certification issued by a health care provider” and that employers may request subsequent recertifications “on a reasonable basis.” In most cases, employees must provide certification to their employers within 15 calendar days after the employer’s request.

The Third Circuit ruled that the employer’s initial denial of additional FMLA leave was improper, but “was not irremediable.” The court stated that Congress did not intend “[t]echnical rules and burdensome administrative requirements … [to] impose unforeseen liabilities”, and that “[p]ermitting [the employer] to remedy its previously non-compliant notice, and thus allowing [the employee] another chance to submit the required medical documentation, serves the stated purposes of the FMLA.”

The court ruled in favor of the employer and dismissed the case. If the employee had submitted a sufficient recertification form to the employer within the seven-day deadline, she could have obtained an extension of her FMLA leave. Because she did not submit the proper forms, however, she was not entitled to FMLA leave and, therefore, could not show prejudice due to the violation, or claim retaliation for exercising her FMLA rights.

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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