A challenge for employers administering FMLA leaves is how to police questionable requests for FMLA leaves, including those involving inadequate FMLA certifications.  The recent Sixth Circuit case, Novak v. MetroHealth Medical, provides guidance for an employer faced with this challenge.  This article will begin with an outline of the Novak case and conclude with a list of steps an employer should take to proactively administer FMLA leaves. 

I.    Novak v. MetroHealth

Donna Novak claimed that her employer, Metrohealth, violated the FMLA when it terminated her under a no-fault attendance policy.  2007 WL 2807004 (CA 6, Sept. 28, 2007).  Ms. Novak claimed that some of her absences should have been FMLA protected either because of her own serious health condition (a back injury) or because she needed to care for her adult child who had a serious health condition (postpartum depression).  The trial court granted the employer summary judgment finding that Ms. Novak’s absences were not FMLA protected and the Sixth Circuit Court of Appeals affirmed.

It was established before the trial court that Ms. Novak sought to have some of her absences excused under the FMLA when she realized that she had too many points under the no-fault attendance policy.  She submitted to MetroHealth a medical certification form filled out by a physician who had treated her back six months prior to the absences at issue.  MetroHealth reviewed the medical certification and noted that the form was incomplete as it was missing a description of the medical facts and a statement as to the likely duration of the condition.  Ms. Novak contacted an assistant at her doctor’s office; told the assistant what to write in the incomplete sections of the form; and had the assistant submit the form to the employer without having the physician approve the additions to the form.  In a meeting between MetroHealth and Ms. Novak to discuss the applicability of the FMLA to the absences, MetroHealth questioned the authenticity of the medical certification forms and had Ms. Novak execute a release authorizing the employer to contact Ms. Novak’s physician.  MetroHealth also gave Ms. Novak a week to submit any additional medical certification forms.

MetroHealth contacted the physician and the physician told MetroHealth that he had not treated Ms. Novak in the six month period preceding the absences at issue; that he had no personal knowledge regarding the condition of her back during the pertinent time period; and that he did not complete the entire certification form. 

Ms. Novak then spoke with her doctor; updated him on treatment she was receiving from another doctor; and had him fill out a third certification form based upon this second-hand information.  Additionally, Ms. Novak submitted a medical certification form which stated that her eighteen-year-old daughter suffered from postpartum depression and yet another medical certification which stated that her newly born grandson was sick and Ms. Novak was needed to help care for her grandson. 

After having provided Ms. Novak with additional time to submit additional certifications and having spoken with her treating physician regarding the medical certifications, MetroHealth determined that the “contradictory information” provided did not qualify her absences for FMLA protection and she was terminated under the no-fault attendance policy. 

1. FMLA Analysis-Inadequate Medical Certification and Ramifications
   
   Ms. Novak claimed that her back injury was an FMLA-qualifying condition and that her submitted certification forms sufficiently established the existence of the condition to protect her under the FMLA.  The Court began its analysis by noting that, while the medical certification provided by an employee is presumptively valid if it contains the required information and is signed by the health care provider, the employer may overcome this presumption by showing that “the certificate is invalid or inauthentic.”
   
   The Court found that the medical certifications submitted by Ms. Novak were insufficient to establish the existence of a serious health condition under the FMLA.  The first certification submitted was insufficient because it failed to contain the date the condition began, the probable duration of the condition, and the appropriate medical facts within the health care provider’s knowledge.  The second medical certification was inauthentic because MetroHealth demonstrated that the contents were filled in by an assistant in the office and not authorized by the health care provider.  The third medical certification form was unreliable because MetroHealth demonstrated that the health care provider who signed the form did not have personal knowledge of her condition for the pertinent dates. 
   
   Ms. Novak argued that MetroHealth should have told her about the deficiencies and given her a reasonable opportunity to correct the deficiencies.  The Sixth Circuit agreed that an employer who finds a certification to be incomplete has a duty to inform the employee of the deficiency and provide the employee with a reasonable opportunity to cure.  The Sixth Circuit also acknowledged that some other courts will impose this duty on a certification which is merely “inadequate” rather than “incomplete.”  However, the Sixth Circuit found that MetroHealth satisfied its obligation by contacting the health care provider to authenticate the previously submitted medical certifications and by permitting Ms. Novak to submit three additional medical certification forms.
   
   
2. FMLA Analysis-Employer Not Required to Utilize Second Medical Opinion Process
   
   Ms. Novak also argued that the FMLA requires an employer to utilize the FMLA’s second opinion process before an employer may challenge a medical certification and deny an employee FMLA leave.  The Sixth Circuit rejected this argument noting that the FMLA permits, not requires, an employer to utilize the second opinion process should an employer doubt the validity of a medical certification.  Therefore, MetroHealth’s decision not to utilize the second medical opinion process did not preclude MetroHealth from disputing the validity of the medical certifications.
   
   
3. FMLA Analysis- Care for an Adult Child as FMLA Qualifying
   
   Ms. Novak alternatively applied for FMLA leave to care for her adult daughter who was suffering short-term postpartum depression.  The Sixth Circuit noted that the FMLA authorizes a parent to take leave to care for a child over 18 years of age or older only if the child is suffering from a serious health condition and is “incapable of self-care because of a mental or physical disability.” 
   
   Significantly, the Sixth Circuit ruled that “incapable of self-care because of a mental or physical disability” requires that the adult child be “disabled for purposes of the ADA.”  The Court noted that a disability under the ADA requires a “physical or mental impairment that substantially limits one or more of the major life activities of the individual” and that the EEOC’s regulations specifically exclude from the definition “temporary, non-chronic impairments of a short duration, with little or no long term or permanent impact.”  Because Ms. Novak’s daughter’s postpartum condition was not severe and only lasted one or two weeks, absences for Ms. Novak to care for her adult daughter were not FMLA protected. 
   
   The Court also noted that the certification relating to the sickness of Ms. Novak’s grandchild and the need for Ms. Novak to care for him did not provide protection under the FMLA because the “FMLA does not entitle an employee to leave in order to care for a grandchild.”  However, a caveat should be noted here.  The FMLA does provide for leave for someone who stands in loco parentis to a child.  The Department of Labor regulations define in loco parentis as someone with day-to-day responsibilities to care for and financially support a child” and some grandparents could qualify for leave eligibility under this provision.
   
   

II.    Steps to Properly Enforce FMLA Policies to Prevent Fraudulent Use of Time Off   
   
MetroHealth Medical Center was successful in administering its FMLA program because it took the time to carefully scrutinize Ms. Novak’s medical forms; obtained her permission to speak with her health care provider; spoke with her health care provider; and provided Ms. Novak an opportunity to cure the deficiencies of her medical authorization forms. 

The following is a list of actions an employer can take to effectively administer its FMLA program:

1. Require medical certification.
2. Publish and enforce the 15 day deadline for submitting medical certification.
3. Include in your FMLA forms authorization to contact the employee’s physician, and use it when abuse is suspected.
4. Scrutinize completed medical certifications:
   1. Certification for conditions outside physician’s specialty.
   2. Incomplete.
   3. Inconsistent information.
   4. The wrong patient.
5. Use second opinion process where appropriate; forego second opinion process where it is more effective to otherwise question medical certification
6. Track absence patterns and timing for fraud.
7. Pay attention to rumors of abuse.
8. Surveillance.
9. Use temporary transfer provisions.
10. Run the FMLA clock.
11. Require the use of PTO.
12. Reduce exempt employee’s pay based on amount of leave taken.
13. Document reasons for absences.
14. Enforce call-off rules and notice requirements.