Insufficiency in FMLA Paperwork is Not Grounds for Denial of Leave


Leave of Absence

A recent case from the Northern District of Alabama demonstrates the dangers of denying FMLA leave based insufficient FMLA paperwork.  Hayes v. Voestalpine Nortrak, Inc., No. 2:14-cv-2322-AKK (May 5, 2016).

In Hayes, the employee submitted an FMLA certification from his doctor which said that the employee:  (1) was seen “too many times to list — monthly since 2009”; (2) had impairments expected to continue throughout his life; and, (3) would need follow-up treatment appointments.  Nevertheless, the employer’s Human Resources Director denied the request for FMLA leave because the certification failed to indicate whether the employee would be incapacitated for any period of time or if the employee needed a reduced work schedule.

United States District Court Judge Abul Kallon denied summary judgment for the employer and sent the case to trial.  Judge Kallon particularly faulted the employer for failure to notify the employee in writing of deficiencies in the FMLA paperwork.  The FMLA’s implementing regulations require:

The employer shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete or sufficient.  A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.

29 C.F.R. § 825.305(c).

Because the employer failed to notify the employee in writing of deficiencies in the paperwork, Judge Kallon found a jury issue “about whether the failure to engage in the certification dialogue constituted interference with Hayes’ FMLA leave.”  Hayes, 2016 WL 258791 at *4.

Hayes could be a dangerous case in the future, because of its reference to a “certification dialogue.”  There is no requirement for a “dialogue” under the FMLA, but I expect that some employee-friendly lawyers will argue that employers are required to notify employees of the exact weaknesses in a doctor’s certification, and engage in a “dialogue” to get the certification in a form that will permit FMLA leave.  I don’t believe that there is any such requirement.  Instead, if a physician’s certification is clear on its face, and does not satisfy the requirements for establishing a “serious health condition,” then employers should be able to deny FMLA leave without any further “dialogue.”

Hayes should stand for a much narrower proposition.  An exchange of information with the employee may be required if the doctor’s certification:  (1) has entries that have not been completed; or, (2) is vague, ambiguous or non-responsive.  29 C.F.R. § 825.305(c).  In any event, Hayes provides employers with a cautionary lesson about denying FMLA leave based upon deficiencies in an FMLA certification.