Employer May Terminate Employee Because It Corrected FMLA Irregularities

The U.S. Court of Appeals for the Third Circuit has ruled, in Watson v. Drexel University, that an employer may terminate an employee for taking unauthorized leave because it had previously corrected a mistake in its FMLA certification requirements.

Facts. An employee sought, and received, authorization for FMLA leave for personal illness after providing the required medical certification. Later, the employer requested a recertification. However, this notice of recertification did not comply with the Department of Labor regulations because it did not state the “specific expectation” that the employee had to return a new medical recertification and it failed to include a blank recertification form. The employer subsequently denied additional FMLA leave but then sent the employee a letter advising her that her recertification was incomplete, enclosing a blank certification form, and instructing her to fill out the form, taking care to include the data listed as “incomplete” and to return it within seven days.

The employee did not complete the recertification form but nevertheless took additional leave. When she was later terminated, she sued the employer claiming that her FMLA rights had been violated.

Law. Under the FMLA, eligible employees may take up to 12 weeks of unpaid leave each year for (among other things) a serious health condition that prevents the employee from performing his or her job. Furthermore, employers are prohibited from discriminating or retaliating against employees who exercise their FMLA rights. 

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

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

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 as a result of the violation or claim retaliation for exercising her FMLA rights.

The court therefore ruled in favor of the employer and dismissed the matter.