September 15, 2006

A new decision was issued by the Sixth Circuit Court of Appeals last week which highlights an FMLA regulation that many employers may be overlooking in their implementation of this law.

The decision (Killian v. Yorozu Automotive Tennessee, Inc.) focused on the time period for employees who already are on FMLA leave to submit medical recertification forms when their previous medical certification forms have expired or their need for leave otherwise has expanded beyond what originally was anticipated/authorized. The employer in the Killian case had a written policy which provided that such employees’ recertification forms had to be received before the expiration of their current medical certification forms in order for their additional period of leave to be approved/excused. The Sixth Circuit Court of Appeals found that this policy violated the FMLA UNLESS such employees were given at least 15 days to provide the recertification forms from the time the employer specifically requested them.

Specifically, in the Killian case the employee did not notify the employer that she was going to need additional leave until a week before her current approved FMLA leave was scheduled to end. The employer told her that she would need to get a recertification form in to human resources before her current approved leave was scheduled to end. When she did not do so and did not come back to work at the end of her previously approved leave, the employer fired her.

The Sixth Circuit Court of Appeals held that this application of the employer's recertification policy violated the FMLA because the employee was not given her full 15 days to get the recertification form in after the employer requested it. The Sixth Circuit Court of Appeals only has jurisdiction over Tennessee, Kentucky, Michigan and Ohio. However, FMLA regulation § 825.308(d) specifically provides that employees must be provided with at least 15 days from the date of their employer's request to provide a recertification form. Accordingly, if this issue is addressed by courts in other jurisdictions, they are likely to reach the same decision as the Sixth Circuit has in the Killian case.

The way this scenario can become very common (and dangerous) is that the FMLA regulations (specifically § 825.309(c)) provide that employees only have to give notice "within one to two business days" of learning of a change in circumstances concerning their need for additional leave. Thus, like the employee in the Killian case, employees often will not give their employers notice 15 days in advance of the expiration of their current medical certification forms, such that there will be a period after the expiration of their current medical certification forms during which these employees are saying they still need to be "on leave" but the employer does not have any documentation supporting the need for leave. Employers who are not aware of how the "one-to-two business day employee notice" and the "15-day employer notice" regulations interact could get into trouble like the employer in Killian did due to "pulling the trigger" too quickly upon realizing this gap in documentation.

In light of the Killian decision, it is still “ok” to have a company policy which requires employees to submit recertification forms by the time their current medical certification forms expire. HOWEVER, in order to enforce these policies without violating the FMLA, employers need to monitor the expiration dates of the current medical certification forms of employees on leave and will need to expressly inform such employees (preferably in writing to prevent future he said/she said battles) at least 15 days prior to the expiration of these forms that they will need to provide recertification forms by the date these forms expire if they are going to need additional leave beyond this date.

Some employers may decide to discontinue using such policies due to the fact that the date an employee’s recertification form will be due will be based on their notice of a change in circumstances necessitating additional leave – not on the employer’s policy – IF the employee finds about his/her need for additional leave AFTER the employer has requested a recertification form based on such policies.

Regardless of whether employers continue to use such policies, they need to remain aware that if an employee does not find out about his/her need for additional leave so as to be able to comply with the employer’s recertification policy, the employer will need to give the employee additional time to get the recertification form in before deciding not to authorize the additional leave/discipline the employee.

In other words, just sending a letter to an employee on leave saying “pursuant to company policy, we will need a recertification form back from you before the expiration of your current medical certification form” at least 15 days before the current certification form expires will not give employers the automatic right to terminate or otherwise discipline an employee who, like the employee in the Killian case, does not find out about his/her need for additional leave until sometime during this 15-day period. The employee still will have an obligation to report this need for additional leave to the employer within one to two business days of learning of the need for the additional leave; then -- at that point -- the employer should request the recertification form and give the employee at least 15 days from that date to return the form (even if they already have sent the “pursuant to company policy form letter” described above). Employees who then do not return a recertification form within the “new” 15-day period set forth in the employer’s specific request can be denied the additional leave and disciplined/terminated pursuant to the employer’s regular attendance/leave of absence policies. (We recommend informing employees of this consequence in a written request for the recertification forms, again, so there is no question later of the information the employee received prior to being disciplined, terminated, etc.)

If you have further questions about this recertification issue or the FMLA generally, we invite you to contact the Labor & Employment Department at Miller & Martin PLLC.

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance. Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.