Employee's Lack of Diligence in Obtaining Medical Certification Defeats FMLA Claim

In Brookins v. Staples Contract & Commercial, Inc., the court ruled today that an employee did not make diligent efforts to obtain medical certification and therefore did not have an FMLA claim against her employer, Staples. The employee had a series of unexcused absences for which she was on the verge of termination. The employee informed Staples about her medical condition and insisted that her absences were related to her treatment.

Under FMLA, employers have the right to request and obtain complete and sufficient medical certification to support an absence due to an emthe ployee's alleged serious health condition. The regulations provide that the employee must provide the requested certification to the employer within 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. 29 C.F.R. § 825.305(b). If the employee does not provide this certification, the employer is allowed to deny FMLA coverage until certification is provided; any absences in the interim are considered unexcused and could subject the employee to termination. In this case, the employee did not provide Staples with medical certification within 15 days. Staples provided the employee with an additional seven days and another extension after that. The employee had approximately one month to return the certification. After one month, Staples converted her absences to unexcused leave and terminated her employment.

Now, since the employee could not return her certification on time, she has the burden to show that she used “diligent, good faith efforts” to return the certification. The employee in this case called her two primary physicians and asked them to complete the certification. When they refused to complete the form, the employee did nothing further to obtain certification. The Court found that this was not sufficient to show that the employee engaged in “diligent, good faith efforts” to obtain certification.

So, what are “diligent, good faith efforts?”

The Court suggested the following for this case:

• She should have contacted her two physicians again, explaining the importance of completing the certification;
• She could have asked one of three additional specialists she visited during treatment to complete the form;
• She could have mailed the form to any of these doctors; She could have delivered the form in person to any of these doctors;
• And, the most important: She could have contacted her employer to explain her difficulties in obtaining timely certification and requested an extension before the 15-day deadline expired.

This is a great ruling for employers and the management side of employment law.