No FMLA protections based on incomplete medical certification

No FMLA protections based on incomplete medical certification

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Janet Lewis was employed as a civilian in the Air Force as Director of the Elmendorf Air Force Base Child Development Center.  She requested 120 days of FMLA leave due to her own serious health condition. The Agency required Lewis to support her request for leave with the WH-380 medical certification form.  Lewis had her doctor fill out the form, which she submitted in support of her leave request. At the same time, she submitted a prescription from her doctor, and a 2006 letter from another doctor.  Kathleen DeShasier, Lewis's supervisor, told her the documents she submitted were insufficient to support her request for FMLA leave.  Lewis refused to submit more information, believing that she had provided all the information necessary under the FMLA.  When she failed to show up for work, the Agency fired her AWOL.  She appealed her removal through the administrative and federal district court, without success. 

Before the Ninth Circuit, Lewis argued that the documents she submitted provided sufficient medical facts to support the conclusion that she suffered from an FMLA-covered serious health condition. The Ninth Circuit disagreed.  Lewis's WH-380, the court observed, "states only that she was diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescriptions medications, and 120 days off work." 

Significantly, the Court found that the WH-380 form was incomplete because it failed to-

1. provide a summary of the medical facts that support the diagnosis;

2. contain an explanation as to why Lewis was unable to perform her work duties; and

3. address what additional treatments would be required for her condition.

The   rejected Lewis's alternative argument that she submitted adequate medical documentation to the HR department in support of her workers’ compensation claim. 

Along with her OWCP claim, Lewis did, the Court found, submit medical documents and a detailed diagnosis.  

However, Lewis did not deliver the OWCP documents to her supervisor. Instead, she specifically requested that the HR department keep her medical records confidential and out of her supervisor's hands.  In so doing, the Court essentially found that Lewis could not rely on her OWCP documents as a way to supplement her incomplete WH-380.

Mr. Bosland Comments:  To substantiate an employee's request for serious health condition FMLA leave, an employer may require the employee to submit a complete medical certification.  The permissible content of that certification is governed by federal regulations.  To determine whether the leave is covered by the FMLA, an employer may not require an employee to provide more medical information than is permitted by law.  While an employer may voluntarily agree to accept a medical certification with less medical information than permitted  (employers are not mandated to require any medical certification), they are perfectly within their rights to insist that they receive a complete medical certification. 

Some employee's are very reluctant to disclose their medical condition to their supervisor or employer when requesting leave.  They fear that their highly confidential medical information will "get out" and become fodder for the office rumor mill.  These employees tend to offer sparse medical certifications.  These certifications may even have something written in every area of the WH-380 form, but the information provided is either incomplete or useless.  When offered the chance to submit additional information, these employees, like Lewis, often refuse.   

Employees who refuse to provide additional information run the considerable risk of losing FMLA protections.  As with Lewis, employees who forge ahead and take the leave anyway in the belief that they did provide a complete medical certification, and that the employer is wrong, run the considerable risk of being disciplined for AWOL.  Before risking your job, employees better be certain that they are right and their employer is wrong on this issue.  Check with your union, the US Department of Labor, or an attorney. 

Note that the Court rejected Lewis's argument that she satisfied her FMLA medical certification by providing additional medical information to the HR department as part of the OWCP claim. While the Court did not spell it out, the implication is that she was required to submit her FMLA request to her supervisor, not the HR department.  Moreover, she specifically asked that her OWCP medical documents be kept confidential including from her supervisor. 

Providing medical information, but not to the right person or office, is another (failed) tactic frequently used by employees who don't want to disclose information to their supervisor even though that is what may be required by the employer's policy.  For example, as in Lewis, employees will send their medical documentation to a medical or OWCP unit with confidentiality restrictions, and then claim that they satisfied the FMLA because they provided the certification to their employer writ large.   

Where the employer has a policy or practice requiring the employee to request leave and provide supporting medical certification through the immediate supervisor or a specified office, providing the medical documentation to some other unit of the employer will not secure the protections of the FMLA.  Courts have not allowed employees to game the system by providing supporting medical documentation to someone within the company, but outside of the policy or practice.   

Lewis v. USA, No. 10-35624 (9th Cir. May 26, 2011), http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf

Considering hearsay evidence offered in the course of an administrative hearing

Considering hearsay evidence offered in the course of an administrative hearing

Derbyshire v Safir, 288 AD2d 18, [Motion for leave to appeal denied, 97 NY2d 611]

In this appeal, the Appellate Division held that Joseph Derbyshire received a fair hearing and that substantial evidence supported the administrative determination to dismiss him from his position.

Derbyshire had argued that certain hearsay evidence against him should not have been considered in making the administrative determination. The Appellate Division disagreed, ruling that “[h]ighly probative hearsay evidence was properly admitted” and thus could be considered in making the determination.

The court also commented that Derbyshire's admissions to his wife were not protected by the marital privilege (Section 4502[b], Civil Practice Law and Rules) because of the nature of the misconduct involved and it found no basis upon which to apply a more restrictive rule in administrative proceedings than would apply in a criminal proceeding.

Under the circumstances, the court said, “imposing the penalty of dismissal does not shock the conscience of this Court,” citing Brown v Safir, 258 AD2d 359, [leave to appeal denied, 93 NY2d 807].

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Doctrine of Estoppel applied in ADA litigation

Doctrine of Estoppel applied in ADA litigation

DeVito v Chicago Park District, CA7, 270. F.3d 532

Nicholas DeVito charged that his employer, the Chicago Park District, violated the ADA by failing to accommodate his disability. His claim was dismissed after a bench trial. The district court judge found that the DeVito was physically incapable of working full time, even with an accommodation, and therefore was not within the Act's protections. The Circuit Court agreed and dismissed DeVito's appeal.

DeVito worked as a laborer for the park district until he injured his back in 1979. Although his injury prevented his returning to his laborer's job, he was assigned to a “light duty” job -- answering the telephone at a park district office near his home.*

Four years later, the park district fired DeVito after it videotaped him twisting, bending, and climbing in and out of trucks.

Starting with the observation that the employment provisions of the Americans with Disabilities Act provide relief only to persons who are capable, with or without an accommodation that would make it possible for them to work despite a disability, to perform the essential functions of their job, which in the case of a full-time job requires that they be capable of working full time.**

In addition, said the court, there is a more fundamental objection to DeVito's claim. The doctrine of estoppel prevents a litigant from repudiating a representation that has reasonably, foreseeable induced reliance by the person to whom he made it. “Even if the representation was false (indeed that is the usual case in which the doctrine is applied), the maker of it is estopped (forbidden) to deny it and by denying it pull the rug out from under the unsuspecting person to whom he had made it.”

The doctrine has been applied in ADA cases much like this one -- cases in which an employee attempts to whipsaw his employer by first obtaining benefits or concessions upon a representation of total disability to work full time and then seeking damages for the employer's failure to accommodate the disability, which the employee now seeks to prove was not total after all.

In the words of the court, “an ADA plaintiff may be estopped by an inconsistent representation made to his employer to obtain benefits.” However, the Circuit Court observed that “since different statutes define total disability differently, the employee will sometimes be able to explain away the apparent inconsistency of his positions.

Here the court rejected DeVito's efforts to “explain away” any inconsistencies in his position. It said that the park district was entitled to rely on DeVito's implicit representation -- implicit in his behavior in his light-duty job answering the phone -- that “he could work no more than two or three hours a day and on his explicit representation that his condition had not improved since the original injury.”

* DeVito was allowed to leave work whenever he felt pain or stress and admitted that he would typically leave work after only two or three hours, though he was being paid the full wages of a laborer who works eight hours a day.

** The fact that DeVito had not worked full time for 13 years at the time of the appeal hearing -- the ostensible reason being his disability, and his statement at that hearing that he currently felt no better than he had felt when he was first injured -- was enough evidence to enable the district judge to find that DeVito was incapable of working full time.