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Cases in the Third Circuit Court of Appeals have great importance for New Jersey employers in connection with the FMLA. The case ofHansler v. Lehigh Valley Hosp. Network, 790 F.3d 499 (2015 U. S. App. LEXIS 10444) (3d Cir. June 22, 2015) is worthy of study. It involved a technical partner who was hired in 2011 and began to have shortness of breath, nausea, and vomiting in 2013. The cause of these symptoms was unknown at the time she submitted her medical certification for intermittent leave under the FMLA. The medical certification form requested intermittent leave at a frequency of two times weekly starting March 1, 2013 and lasting for a probable duration of one month – or until April 1, 2013.
Hansler was unable to work on March 13, 14, 23, 24 and 25. Lehigh Valley terminated her employment at the end of her shift on March 28, 2013 for excessive absenteeism. The hospital did not seek further information about the medical certification submitted on March 13th. Hansler protested that she had requested FMLA leave but the hospital advised her that her request was denied. However, Hansler was unaware of this until she got a letter around the last day of her absences. This letter stated that he leave request was denied because her condition did not qualify as a serious health condition. In early April 2013 Hansler was diagnosed with diabetes and high blood pressure. She alleged in her law suit that these previously unknown diagnoses were the cause of her absences.
In her law suit for interference with her FMLA rights, Hansler argued that she had a chronic serious health condition and the hospital failed to allow her seven days to cure the vague certification she submitted. Lehigh Valley countered that a chronic condition must continue over an extended period of time, and one month is not enough. The District Court agreed with Lehigh Valley but the Third Circuit Court of Appeals reversed in favor of Hansler. It said there is a difference between a negative medical certification and an incomplete or vague certification in that the latter requires the employer to allow the employee seven days to cure.
The Court gave an example of a negative certification as one in which the medical certification flatly says that the employee is not incapacitated from working. There would be no need to ask the employee to cure this sort of certification. But in this case, the court found:
In short, we hold today simply that when a certification submitted by an employee is ‘vague, ambiguous, or non-responsive’ (or ‘incomplete,’ for that matter) as to any of the categories of information required under 29, U.S.C. 2613(b), the employer ‘shall advise the employee . . . what additional information is necessary to make the certification complete and sufficient’ and ‘must provide the employee with seven calendar days . . . to cure any such deficiency.’ 29 C.F.R. 825.305(c). The plain and mandatory language of the statute and regulations requires no less.
The Third Circuit presented the following rationale for its holding: “Rather, because a ‘sufficient certification’ for intermittent leave under 29U.S.C. 2513(b) must address both ‘the expected duration of the intermittent leave’ and the ‘probable duration of the condition,’ and because the certification here failed to specify whether the ‘probable duration of the one month’ referred to the duration of the leave request, the duration of the medical condition, or both, the certification was not a ‘negative certification,’ but was instead ‘vague, ambiguous, or non-responsive,’ meeting the definition of ‘insufficient.’” In short, the Court felt that the certification was vague in regard to the meaning of duration: was it the duration of the leave request or the medical condition?
The Court said that Lehigh Valley should have advised Hansler that the certification was insufficient and stated in writing what additional information was required. In addition, the hospital should have allowed her an opportunity to cure or clear up the ambiguity. The Court was also critical of Lehigh Valley for not advising Hansler right away that her request had been denied. The Court concluded, “Faced with nascent symptoms from a yet-to-be diagnosed condition, an employee’s physician may need some additional time to provide the required elements of a certification.”
This case is important because it focuses on a situation where an employer tends to jump the gun in termination decisions. If in doubt, the employer should allow the seven days to cure unless it is absolutely clear from the certification that the employee is not incapacitated from working and therefore does not have a covered serious health condition.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.