Court Revives FMLA Claims of Employee Fired for Absences After Leave Request

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By Kevin McGowan

June 23 — A Pennsylvania hospital employee fired for excessive absences after seeking intermittent leave for an unspecified medical condition raised plausible Family and Medical Leave Act claims when the employer never gave her a chance to fix her allegedly deficient medical certification, a divided U.S. Court of Appeals for the Third Circuit ruled June 22.

In a 2-1 decision reviving a lawsuit against Lehigh Valley Health Network, the court said Deborah Hansler stated an FMLA interference claim based on Labor Department regulations requiring employers to give workers notice that leave is being denied and to provide seven days to cure any alleged defects in the employee's medical certification.

On a matter of first impression for the Third Circuit, the court ruled employees who allege harm from an employer's failure to comply with its obligations under the Labor Department regulation codified at 29 C.F.R. § 825.305(c) state an interference claim under the act.

Hansler also sufficiently pleaded an FMLA retaliation claim that her March 2013 termination was based on her leave request, the court said. It rejected the district court's reasoning that Hansler never made a “valid” leave request because her doctor never certified a “serious health condition.”

About a week after being fired, Hansler was diagnosed with diabetes and high blood pressure, which she said explained the shortness of breath, nausea and vomiting for which she had sought leave, the court said.

Hansler alleged she tried to invoke her right to FMLA leave, Lehigh Valley didn't advise her of any deficiencies in her medical certification, the employer never offered her the seven-day “cure period” to amend her certification and she was fired a few weeks after requesting leave, the court said.

“Through discovery, Hansler might be able to show that Lehigh Valley had a retaliatory motive and that the stated reason for termination was pretextual,” Judge Julio M. Fuentes wrote for the court.

No Grounds for Leave, Dissent Says 

In dissent, Judge Jane R. Roth said the majority's “strained reinterpretation” of the FMLA is an understandable effort to aid Hansler, whose symptoms were undiagnosed when she sought leave.

“The problem with this solution is that the employer in good faith, with the completed form and the information on it, has denied FMLA leave because the employee was not qualified for it,” Roth wrote.

Lehigh Valley didn't reject Hansler's medical certification as “incomplete or insufficient,” but rather denied FMLA leave because her completed form “did not present grounds” to grant statutory leave, the dissent said.

“In this situation, there is no statutory right to cure by presenting further information within seven days,” Roth wrote. “The employer here should not be penalized for denying leave when the complete and unambiguous request for leave did not present grounds for leave.”


Lower Court Faulted Certification 

Hansler, hired by Lehigh Valley in 2011 as a technical partner, sought FMLA leave after she began experiencing shortness of breath, nausea and vomiting in early March 2013, the court said.

Hansler's doctor completed a medical certification form requesting “intermittent leave at a frequency of 2 times weekly” starting March 1, 2013, and lasting for a probable duration of one month. After Hansler submitted the certification but before Lehigh Valley responded, she missed work because of her condition on March 13, 14, 23, 24 and 25, the court recounted.

Without seeking further information about the medical certification from Hansler of her physician, Lehigh Valley on March 28 terminated Hansler for absenteeism, including the five days she had taken off in March. When Hansler reminded Lehigh Valley she had requested FMLA leave, the company told her, for the first time, that her leave request had been denied. Hansler later learned of a letter dated March 26 explaining her request was denied because she lacked a “serious health condition” as defined by the act.

In dismissing Hansler's FMLA complaint, the U.S. District Court for the Eastern District of Pennsylvania said her leave request was defective because her medical certification indicated her condition would last only one month, but the FMLA requires a “chronic serious health condition” that persists for “an extended period of time.”

Since the certification showed Hansler wasn't entitled to leave, Lehigh Valley wasn't required to extend the statutory “cure period” to remedy an “incomplete” or “insufficient” certification and the employer didn't violate the FMLA by firing Hansler for her subsequent absences, the district court said.

‘Insufficient,' Not ‘Negative' Certification

Under the FMLA, a “sufficient” medical certification supporting a leave request must state the date on which the serious health condition began, the probable duration of the condition, relevant medical facts, a statement the employee is unable to perform her job's functions, the dates and duration of any planned medical treatment and the expected duration of the intermittent leave.

An employer may deny FMLA leave if it determines the medical certification is either insufficient or incomplete. But under the Labor Department regulation codified at 29 C.F.R. § 825.305(c), the employer can do so only if it provides the employee with seven calendar days to cure any alleged deficiencies in the medical certification, the court said.

The district court said Hansler's certification wasn't “insufficient” or “incomplete,” Rather, her physician presented a “negative” certification, meaning that on its face, it indicated Hansler didn't have a “serious medical condition” because one month isn't an “extended period” of time, the district court said. Lehigh Valley had no duty to allow a “cure period” because the certification indicated Hansler had no statutory entitlement to leave, the district court said.

But the Third Circuit found Hansler's certification wasn't “negative,” but rather insufficient or incomplete because relevant information about her condition, including the diagnosis, wasn't yet available when she requested leave.

The FMLA doesn't mention a “negative” certification, which is a judicially-created concept stemming from Stoops v. One Call Communications, Inc., 141 F.3d 309, 4 WH Cases2d 779 (7th Cir. 1998) , the court said. But in Stoops and other circuit decisions that followed that ruling, the certifications contained “affirmative statements” indicating an employee wasn't entitled to FMLA leave, the Third Circuit said.

“We need not decide whether in certain circumstances a medical certification may be negative because, even if we were to agree with the cases finding negative certification, we still would not find those cases persuasive here,” Fuentes wrote. “The certifications in those cases contained affirmative statements from the employees' physicians that the employees would not miss any work, which, by definition, meant they did not have ‘serious health conditions.' ”

By contrast, Hansler's certification requested intermittent leave twice a week lasting “for a probable duration of one month,” indicating she would miss work but lacking specificity about her health condition, the court said.

Hansler's certification therefore is “insufficient” under the DOL regulations because it is “vague, ambiguous or non-responsive,” the court said. It's exactly the type of certification on which the regulations require the employer to identify the deficiencies and offer the employee an opportunity to supplement or amend, the court said.

“In light of the mandatory language in the regulations instructing employers to advise their employees of vague, ambiguous and non-responsive certifications, we see no need to comment in this case on the narrow category of certifications deemed negative,” Fuentes wrote.

“Having concluded that Hansler plausibly alleges her certification was insufficient rather than negative, the next question is whether she states a claim for interference under the act,” the court said.

Breach of DOL Rule Is ‘Interference.'

Circuit precedent finding FMLA interference based on an employer's failure to satisfy the act's notice provisions also supports an interference claim if the employer fails to provide the cure period for an insufficient or incomplete certification, the court said.

The logic of the interference cases based on notice violations “naturally extends to an employer's failure to comply with its regulatory obligations following receipt of an insufficient or incomplete medical certification,” Fuentes wrote.

“Just like employers must advise employees of their rights under the act, they also must advise employees of deficiencies in their medical certifications and provide them with an opportunity to cure,” the court said. “These modest burdens imposed on employers help ensure that employees are equipped with at least basic information about the act's requirements and have an opportunity to exercise their rights in a meaningful way. And to encourage employer compliance, the regulations provide injured employees with a cause of action for interference.”

Hansler sufficiently states an FMLA interference claim because she alleges Lehigh Valley failed to identify deficiencies in her medical certification and failed to provide her with an opportunity to cure, the court said.

“Instead of having the chance to exercise her rights in a meaningful way and demonstrate her entitlement to leave, Lehigh Valley fired her,” Fuentes wrote. “As such, Hansler sufficiently alleges she was prejudiced as a result of Lehigh Valley's regulatory violations.”

The court's conclusion not only is “dictated by precedent as well as the statutory and regulatory text,” but the cure period “also makes abundant sense” in circumstances like those faced by Hansler, the court said. Presented with “nascent symptoms” of a “yet to be diagnosed condition,” an employee's physician may need additional time to “provide the required elements of a sufficient certification,” the court said.

“As this case illustrates, for an employee with an emerging condition, the difference between a medical certification that supports leave and one that is deficient might be a matter of days,” Fuentes wrote.

Judge Thomas L. Ambro joined in the decision.

Samuel A. Dion of Dion & Gallagher in Philadelphia represented Hansler. Darren M. Creasy, Karyn Dobroskey Rienzi, A. James Johnston and Andrea M. Kirschenbaum of Post & Schnell in Philadelphia and Glenn Guanowsky of Lehigh Valley Hospital's Department of Legal Services in Allentown, Pa., represented the hospital.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at

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