3d Cir. on FMLA "Negative Certifications" and Right to Cure

Yesterday, the Third Circuit issued an interesting precedential opinion in Hansler v. Lehigh Valley Hospital Network.

A Negative Certification?

The employee sought intermittent leave and submitted an FMLA certification form to her employer. The form indicated that she was "“requesting intermittent leave at a frequency of 2 times weekly starting on March 1, 2013 and lasting for a probable duration of one month– or until about April 1, 2013.” Unless you're a real FMLA expert, you probably don't see the problem.

An employee seeking intermittent FMLA leave for a chronic "serious health condition" must establish that the condition "continues over an extended period of time." As she was only requesting intermittent leave for about a month, she did not meet that requirement. The employer therefore denied her FMLA leave, concluding that her certification was a "negative certification" (a certification that establishes that the employee is not entitled to FMLA leave - some courts have held that employers may rely on such "negative certifications"). The employee subsequently missed work, and the employer fired her because the absences were unexcused. The employee was diagnosed with diabetes and high blood pressure, but only after her termination.

A Right to Cure?

Not official use.

Let's turn to a different aspect of FMLA. If an employee submits an "incomplete" ("one or more of the applicable entries have not been completed") or "insufficient" ("a complete certification, but the information provided is vague, ambiguous, or nonresponsive") certification, then (s)he has a right to cure. The employer must notify the employee in writing of the information needed to make the certification complete and sufficient. The employee then has seven days to cure the defects. The employer apparently did none of those things in this case (because it concluded that the certification was "negative" not "incomplete" or "insufficient").

Conclusion

At first glance, the certification appears to be complete and sufficient - it just indicates that she only needed the leave for a month, so she didn't meet the "extended period of time" requirement. Right? Wrong.

[A] sufficient medical certification must state, among other things, both the probable duration of the condition and the expected duration of the intermittent leave. 29 U.S.C. § 2613(b). [Employee's] certification is vague and nonresponsive insofar as it requests intermittent leave for one month but fails to specify whether the one month duration refers only to the length of her leave request or to the duration of her condition.

Therefore the employee was entitled to the 7-day opportunity to cure the insufficiency. If that sounds like a bit of a stretch to you, you're not alone - this was a split decision and the dissent's not buying this explanation.

So, what does this mean for employers? Well, a super-cautious employer would seek clarification or a cure from the employee for apparently "negative" certifications. At the very least, employers should double-, triple-, maybe even quadruple-check a "negative certification" before flat-out denying it, knowing that the Third Circuit will try to find a way to interpret it as "incomplete" or "insufficient" instead.