Family and Medical Leave: Patience Is a Virtue (Or How Six Days Cost $600,000)

HR Hero
December 14, 2006

If plied with sodium pentothal or a few single malt scotches, most of you probably would confess that your biggest frustration in life isn't your mother-in-law but that gruesome combo of the Family and Medical Leave Act (FMLA) and the employees who love to work it. We're talking about the employee who continually skates near the edge of your attendance policy and then comes down with a mysterious health condition just when he crosses the line. When asked for medical certification, he produces an illegible doctor's note scribbled on a page from a prescription pad but has to be asked three times to have the required certification form completed. He always seems to come through just in the nick of time — almost.

When the master manipulator slips, you're eager to pounce; after all, you've been waiting for this opportunity for a long time. But you can't let your frustration lead you into jumping the gun. The FMLA is a technical and unforgiving law. The employee's history as a slacker and your good intentions to comply don't matter a whit. As our court of appeals recently pointed out, firing him early could lead to an expensive lesson on the FMLA's nuances. Terminating its problem employee six days early left one employer $600,000 short earlier this month but a whole lot wiser.

Playing the Game

Ralph Cooper worked for Fulton County ( Alabama) for almost 20 years. In the 1980s, he developed depression and other health problems that led to regular absences from work. He was threatened with termination at least twice for failing to contact his supervisor or provide medical documentation for his absences.

On June 22, 1998, Cooper went into the hospital because of chest pains. On July 6, his boss sent him a letter explaining that he had to submit an original signed doctor's excuse for each day of his absence. The letter gave him until July 8 to provide a doctor's excuse or he would be considered to have abandoned his job by failing to comply with the attendance policies. If he complied, according to the letter, he would be placed on "twelve weeks' leave for family purposes involving your serious illness." On July 8, he provided the requested documentation, which covered his absences through July 13.

On July 13, Cooper returned to work, but two hours into his work day, he told his supervisor that he was too ill to work. Later that day, his supervisor left a phone message for him, requesting that he provide a doctor's excuse for leaving early and any further absences. On July 14, Cooper faxed his boss a letter asking for family leave because of blurred vision, extreme headaches, and "passing out." His supervisor called him again to request a written medical excuse, but he didn't respond.

On August 4, Cooper's boss hand-delivered another letter requesting medical certification for his absence by August 10. Cooper obtained a letter from his doctor on August 7 but didn't immediately deliver it. On August 10, his supervisor sent him a letter stating that he was terminated. Cooper faxed and mailed his doctor's letter the next day.

Getting Played

Cooper sued the county under the FMLA, and a judge awarded him more than $300,000 in back pay and benefits, which was then doubled for liquidated damages. "How could he?" you ask. The employee ignored two requests for a doctor's note from his supervisor, and when he finally responded, he was a day late. An employer can demand medical certification can't it? It had been almost a month since he had left work early. The employer doesn't have to wait forever, right?

The employer does have the right to demand medical certification, and it doesn't have to wait forever. But the FMLA is very specific about how you request medical certification and how long you allow the employee to respond. If you require medical certification, you must put that requirement in writing every time the employee asks for FMLA leave. The only exception is if you have given him the required written notice regarding the FMLA and your specific FMLA policies within the last six months. If you haven't, an oral request isn't sufficient. When leave is unforeseeable, you must allow the employee at least 15 calendar days to comply with your request for certification.

Although Cooper's supervisor asked for certification twice in mid-July, the county didn't put its request in writing until August 4, and then it allowed Cooper only until August 10 to comply. The county tried to take advantage of the exception, arguing that the July 6 letter requesting certification was prior written notice within the last six months. Our federal court of appeals didn't bite, though.

First, the July 6 letter didn't refer to the FMLA and didn't explain Cooper's rights and obligations in requesting FMLA leave. The only written policy he had been provided in the last six months was the county's absenteeism and tardiness policy; he wasn't given anything about the FMLA. More important, the July 6 letter itself violated the FMLA by demanding medical certification within two days.

To ice the cake, our court of appeals upheld the trial court's decision to double the damages (that's $300,000 worth of icing). Although the appellate court agreed that the county tried to handle Cooper's situation in good faith, it didn't have a reasonable basis for what it did. Neither the manager nor the personnel director consulted the FMLA or its regulations, an attorney, or the U.S. Department of Labor. So based on its lack of any effort to comply with the FMLA, the county ended up with double trouble (Cooper v. Fulton County [11th Cir., 2006]).

Know the Rules Before You Play

As we said earlier, the FMLA is a very technical law, chock full of traps for the unwary. The regulations alone span 137 pages and place most of the compliance burden on you once you're aware that the FMLA might be in play. So if you intend to hold your employees to the rules, you'd better know them yourself.

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Reprinted with permission from www.HRHero.com. Copyright 2006 by M. Lee Smith Publishers LLC.