Here’s a story about Dyamond, who will forever impact the manner in which you review FMLA medical certification.
If this teaser doesn’t have you on the edge of your seat, nothing in this little FMLA blog will.
Dyamond’s Story
Dyamond worked at an assisted living facility run by the State of Illinois (DHS), and she became pregnant. It was a difficult first trimester for Dyamond, who was absent several days due to morning sickness associated with her pregnancy. When she missed five workdays in a bit more than a week due to reported morning sickness, DHS provided her FMLA notices and asked her doctor to complete medical certification. One week later, she even left her shift early due to another bout with morning sickness.
Dyamond’s obstetrician completed medical certification, noting that her medical condition was “pregnancy.” As she suffered from lupus, her pregnancy was considered high-risk, and her OB required additional testing periodically throughout her pregnancy. In the FMLA medical certification, the OB noted Dyamond’s need for FMLA leave for the following:
- To attend biweekly appointments, and weekly appointments in the month leading up to childbirth;
- Six weeks of recuperation following childbirth (and possibly more in the event of a c-section).
Notably, Dyamond’s OB answered “NO” to the question: “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions.”
Can you guess what was noticeably absent from the certification? Any passing reference to morning sickness.
As the story goes, DHS later denied FMLA for a portion of the day in which Dyamond left work early, finding that her absence went beyond the scope of the FMLA approval, since morning sickness was not certified by her OB.
Makes perfect sense, yes? After all, if morning sickness is not listed in the certification, then it’s not FMLA leave, right?
Not so fast.
Apparently, FMLA Medical Certification is a Girl’s Best Friend?
In an odd twist of legal reasoning, the federal appellate court breathed life into Dyamond’s FMLA claims, ruling that an “employee’s entitlement to FMLA leave is not strictly bound by the precise parameters laid out in the medical certification.” Davis v. Illinois Dept. of Human Services (pdf)
Say what?
No joke. Here, as the court pointed out, DHS knew that Dyamond not only was pregnant, but suffered from bouts of morning sickness that caused her to miss work. As such, the court determined that a reasonable jury could find that, given DHS’ knowledge of Dyamond’s morning sickness, it knew that her OB’s medical certification was incomplete, in which case DHS should have provided Dyamond with an opportunity to supplement it.
I don’t buy it.
To be clear, medical certification is the FMLA’s holy grail. Ok, perhaps less dramatic, it’s our north star. As employers, we rely on this medical document –indeed, we need to rely on it — because it outlines the parameters of leave that is medically necessary. Its sole aim is to take the guesswork out of why and when the employee needs to take FMLA leave, as employers can’t be thrust into the role of playing doctor.
What would the court have us do? Send the certification back to the OB and ask, “Are you positively sure you didn’t miss anything, doc?” Or perhaps, “Hey doc, pretty please, is there anything you want to add?”
The court doubled down on its curious reasoning when it refused to acknowledge that morning sickness is a “flare up” of Dyamond’s pregnancy complications. Oddly, the court explained that the regulations expressly define “morning sickness” as a serious health condition, apparently to indicate that the term stands on its own as a basis for FMLA leave (and need not be specifically noted in the certification). But this statement of fact simply is wrong. The regulations simply offer “morning sickness” as an example of a symptom of early pregnancy. In other words, morning sickness is a “flare up” of pregnancy incapacity, which Dyamond’s OB specifically stated was not present here.
Wow. A legal blunder, I think. But nevertheless, one that now must guide our review of medical certification.
Insights for Employers
It ain’t easy making sense of this one, but I offer a few suggestions for your consideration:
- Incorporate this decision into your clarification strategies. Look, I am not saying that morning sickness is not covered by the FMLA. All I am saying is that it should be covered only when it’s supported by medical certification. Clearly, the court expects employes to inquire further if the employee’s symptoms are inconsistent with the contents of the medical certification. Here, the employer was indeed on notice that Dyamond suffered from morning sickness, which would be protected by the FMLA if certified by the health care provider. Dyamond’s case reminds employers that they should follow up with the doc if the employee’s reported or observed need for leave is not expressly covered by the physician’s statements in the certification.
- When in doubt, seek recertification. The [easier?] route here is simply to request recertification for absences based on the same condition but that come different in form (e.g., continuous vs. intermittent leave). When the need for intermittent leave due to flare ups of a condition has not been supported by previous medical certification, yet the reason for leave is the same, it makes sense (in providing legal cover) to seek recertification to determine whether the need for this form of leave (e.g., morning sickness) is medical necessary.