FMLA Notice Failure is FMLA Interference

The Sixth Circuit Court of Appeals recently determined, in Casagrande v. OhioHealth Corp., that an employer violated the Family and Medical Leave Act of 1993 ("FMLA") when it failed to notify an employee on FMLA leave that he would not be restored to his position without first providing a fitness-for-duty certification.

Background. Under certain circumstances, FMLA allows an employer to require an employee returning to work from medical leave to provide a fitness-for-duty certification. However, to impose this requirement, FMLA requires that the employer: (i) notify the employee of this requirement at the same time that the leave is designated as FMLA-eligible, and (ii) maintain a uniform policy of requiring such certifications..  

Facts. In Casagrande, an employee requested several weeks of medical leave, but because he had not worked for the employer for at least a year, he was not yet eligible for FMLA leave. Nonetheless, the employer granted the employee's request under its own leave policy.   The employee returned to work, but shortly thereafter was again required to take leave under the employer's policy.

While out under the employer's leave policy for the second time, the employee became eligible for FMLA. When the employee attempted to return to work, the employer instructed him to apply for a different position because it had filled his original job. The employer also explained that the employee would need to provide a fitness-for-duty certification from his doctor to be reinstated.

When the employee provided the certification, the employer realized that the employee had become FMLA-eligible while on leave. In response, the employer returned the employee to his original position and paid him for the time between the provision of the certification and his reinstatement. Despite these accommodations, the employee sued the employer claiming that it had interfered with his FMLA rights. At trial, the employee asserted that the employer had interfered with his FMLA rights because it had delayed his reinstatement, and the employer contended that the delay resulted from the employee's failure to provide the required certification.

Sixth Circuit. In hearing the matter, the Sixth Circuit questioned whether the employer could require the employee to provide a certification, as there was nothing in the record to suggest that it had a uniform policy of requiring them from all employees. In fact, the employer had not required the employee to provide a certification when he returned after his first leave.

The Sixth Circuit determined that the employer did not follow FMLA requirements when it did not provide an FMLA designation notice to the employee to explain that his reinstatement would be contingent on providing the certification. Accordingly, the Sixth Circuit concluded that, as a matter of law, the employer had interfered with the employee's FMLA rights because it had failed to inform the employee of the requirement to provide the certification in its FMLA designation notice.

Takeaway for Employers. FMLA authorizes employers to condition job reinstatement on an employee's providing a fitness-for-duty certification if that requirement is communicated (to employees) in their FMLA designation notices. Moreover, employers that impose a certification requirement for reinstatement from FMLA leave must adopt the practice as a uniform policy and apply it to all employees.

Casagrande is available at: http://cases.justia.com/federal/appellate-courts/ca6/15-3292/15-3292-2016-12-20.pdf