RESTRICTIONS BEYOND THOSE CONTEMPLATED UNDER THE FMLA
If you are an employer subject to the Family and Medical Leave Act (“FMLA”), then take a couple of minutes to keep reading. In Curry v. Goodwill Industries of Kentucky, Inc., a federal court in the Western District of Kentucky recently addressed, among other things, the extent to which an employer can effectively implement company policies that restrict an employee’s FMLA rights beyond what the Act expressly allows. For those of you who like a really short answer, here it is: You can’t do it.
In Curry, the plaintiff, a former manager of a Goodwill Center in Kentucky, informed her immediate supervisor of her need to take medical leave due to a hysterectomy. In the days that followed, the supervisor began to express dissatisfaction with the fact that she would have to work in place of the plaintiff while the plaintiff was on leave.
A couple of days later, on July 31, 2009, the plaintiff informed the company’s Division Secretary that she would need to take FMLA leave for the surgery. That day, the Division Secretary sent the plaintiff a letter, acknowledging that the company had been made aware that the plaintiff may need to take FMLA leave. Although the district court’s opinion is not entirely clear in this respect, presumably, the July 31, 2009 letter also requested that the plaintiff submit the requisite FMLA paperwork by August 15, 2009.
On August 12, 2009, the plaintiff attempted to turn in her FMLA paperwork, but was told by her supervisor to hold onto the paperwork until she could turn everything in at once. On August 17, 2009, the plaintiff faxed her fully-completed paperwork to the company’s division office. That same day, a letter was sent to the plaintiff by the Vice President of the Western Division of the company, informing the plaintiff that her employment was being terminated for falsifying her time records. The plaintiff had not been disciplined regarding her work. In fact, she had received a raise due to good work performance.
On August 27, 2009, the Vice President of the Western Division of the company denied the plaintiff’s request for FMLA leave on the basis that the company has no obligation to provide FMLA leave to a former employee. Thereafter, the plaintiff filed her lawsuit against the company, asserting claims of interference and retaliation under the FMLA.
In fighting the plaintiff’s FMLA interference claim, the company argued, in part, that the plaintiff was not entitled to FMLA because she did not return the requisite health care certification to the company by August 15, 2009 (i.e., within 15 calendar days from the date of the company’s July 31, 2009, request for such information). The district court rejected the company’s argument. In doing so, the court noted that “[t]he regulations allow an employee to submit the health care certification up to 15 calendar days after the employer’s request, ‘unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.’” As the court explained, an employer can extend the timeframe set forth under the FMLA, but it cannot limit it.
In addition to noting that the company’s stated reason for denying the plaintiff FMLA leave was because her employment had been terminated, not because her health care certification was submitted late, the district court recognized a genuine dispute with regard to, among other things, whether the company extended the deadline beyond the 15-day period by asking the plaintiff to hold onto her paperwork until she could turn it all in at once. Moreover, the court found that, even if the health care certification was submitted late, it was, nevertheless, submitted prior to the plaintiff’s foreseeable leave date. Quoting an applicable regulation (i.e., 29 C.F.R. § 825.313(a)), the court observed that, “[i]n the case of foreseeable leave, if an employee fails to provide certification in a timely manner . . . , then an employer may deny FMLA coverage until the required certification is provided.” (Emphasis added.)
To summarize, the district court’s opinion in Curry lends support to the notion that an employer cannot impose FMLA-related requirements more stringent than those set forth in the FMLA itself. The opinion also serves as a reminder to employers subject to jurisdiction within the Sixth Circuit — which covers Michigan, Ohio, Kentucky, and Tennessee — that the untimely submission of an employee’s health care certification does not provide a blanket basis for permanently denying an employee FMLA leave in connection with his or her request for the same; it simply allows the employer to deny FMLA coverage until the requisite certification is provided.