Qualifying New Jersey employees have job protection under the United States Family and Medical Leave Act (“FMLA”), in case they need to take time off work due to a serious medical condition of their own or that of a family member. The Third Circuit Court of Appeals, which handles appeals of federal cases in New Jersey, recently clarified some of the parameters of that protection.
The FMLA requires certain employers to allow eligible employees to return to their jobs after taking leave of up to twelve weeks. Employers have an obligation to inform employees of their rights under the FMLA; if employees who could take leave, do not do so because the employers did not inform them, the employers can be held liable for interfering with the employees’ rights under the FMLA. Employers can also be held liable for retaliation if they take adverse employment actions against employees because those employees request FMLA leave. It is important to note that, to take leave under the FMLA, an employee is not required to specifically mention the FMLA to her or his employer in order to receive the protections of the FMLA. Rather, an employee only needs to notify her or his employer of the need to take leave, so that the employer realizes that FMLA leave may be appropriate. The FMLA itself does not require that employees provide medical certifications from their health care providers regarding the serious medical condition and the need for leave. But the FMLA does allow that employers can require such a certification. If employers do require certifications, and employees submit certifications which are insufficient or incomplete, the FMLA requires the employers to inform the employees of the problem, and to give the employees a period of seven days to cure the deficiencies.
A recent case out of Pennsylvania, Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 149 (3d Cir. Pa. 2015), affirms the plain language of the FMLA, regarding the obligations of employers which require medical certifications. If an employer requires a medical certification, and an employee submits a certification which the employer considers to be insufficient or incomplete, the employer must give the employee a chance to correct the situation and provide a complete and sufficient certification. As the Court in Hansler points out, all of this is clear in the text of the FMLA itself.
However, there is a line of cases originating with Stoops v. One Call Commc’ns, Inc., 141 F.3d 309 (7th Cir. 1998), in which courts have held that there are such things as “negative” medical certifications, which make employees ineligible for leave under the FMLA. In a medical certification used for requesting leave under the FMLA, a health care provider must certify that the employee (or family member of the employee) suffers from a serious medical condition, and that the employee requires time off work, due to that serious medical condition. A “negative certification,” according to this line of cases, is one in which a health care provider certifies that the employee or family member does NOT suffer from a serious medical condition, and/or that the employee does NOT require time off due to the condition.
Rather than allowing that such a certification may have been prepared in error, and following up with the employee, some employers have determined, and courts have held, that these certifications prove that employees are not eligible for FMLA leave.
This is what Deborah Hansler’s employer, the Lehigh Valley Health Network (wrongly named “Lehigh Valley Hospital Network”) (the “Network”), tried to do. Ms. Hansler suffered from a medical condition which had not yet been diagnosed, and her doctor certified that she needed time off work due to this medical condition. The Network terminated Ms. Hansler, and claimed that it was right to do so, because Ms. Hansler’s physician had provided a negative certification. The District Court agreed with the Network, and dismissed Ms. Hansler’s claims that the employer interfered with her rights under the FMLA, and retaliated against her for requesting leave under the FMLA. The Third Circuit reversed, finding that Ms. Hansler’s doctor’s medical certification was not a negative certification, and casting some doubt on the concept of a “negative certification.”
The regulations make no reference to negative certifications, the basis on which the District Court rejected Hansler’s claim. Instead, they provide that whenever an employer finds a certification “incomplete” or “insufficient,” the employer shall so advise the employee and provide seven days to cure the deficiencies. 29 C.F.R. § 825.305(c). A negative certification is a judicially crafted concept with roots in a decision from the Seventh Circuit Court of Appeals.
Hansler v. Lehigh Valley Hosp. Network, 798 F.3d at 154 (internal citation omitted).
The Court in Hansler found that the Network did not comply with its obligations under the FMLA because it failed to give Ms. Hansler a week to correct any deficiencies and provide a complete and valid medical certification. Because of this, the Court held that Ms. Hansler could go forward with her claims against the Network for FMLA interference and retaliation. This decision may very well mark the beginning of a line of cases which reject the concept of “negative certifications,” which is consistent with the plain language of the FMLA.
By Jennifer Vorih, Esq. and Ty Hyderally, Esq.
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