Untimely Medical Certification Bars FMLA Claim

March 21, 2005

In Urban v. Dolgencorp of Texas, Inc., the Fifth Circuit Court of Appeals struck a blow for employers attempting to manage employees’ purported FMLA-protected leaves of absence, holding Dolgencorp was within its rights to terminate Urban when Urban failed to submit a medical certification supporting her request for FMLA leave. The lesson to be learned? Religiously require medical certifications from your FMLA-leave-seeking employees and inform such employees they will be terminated if they fail to provide the required medical certifications within the mandatory window of opportunity (consisting of at least 15 calendar days).

Urban began working for Dollar General in May 2001. Urban, then an assistant store manager, informed Dollar General she needed bilateral carpal tunnel surgery. The surgery was scheduled to take place on May 28-30, 2002. Sometime before May 28, 2002, Urban informed Dollar General that, because of her upcoming surgery, she was requesting a medical leave of absence pursuant to the FMLA. Urban requested the full twelve weeks of FMLA leave.

In response to Urban’s request, Dollar General acted appropriately, informing Urban that it was tentatively designating her requested leave as FMLA-qualifying. Most importantly, Dollar General notified Urban she would be required to produce medical certification from her physician substantiating the need for leave. Dollar General informed Urban that, in order to have the leave approved as FMLA-qualifying, she would need to return the medical certification form by June 24, 2002. However, Urban failed to provide her employer with the required certification within the time it had specified. Accordingly, on July 19, 2002, Dollar General advised Urban that her employment was terminated; her 30 days of non-FMLA medical leave provided by company policy had already expired, and the company considered her additional absences unauthorized.

Urban filed suit against Dollar General, moving for and receiving summary judgment against her former employer, on the grounds Dollar General had failed to allow her the opportunity to correct her “incomplete” medical certification as required by the FMLA. The Fifth Circuit, however, reversed the district court’s ruling, holding the FMLA only requires an employer to allow an employee to correct an incomplete or deficient certification, not submit a new certification after the deadline for submission has passed. In other words, an employer is not required to allow an employee out on purported FMLA leave an indefinite period of time in which to submit a medical certification substantiating the need for leave. Employers have a right to expect employees to comply with the law and the company’s own internal policies regarding the use of FMLA leave.

Take advantage of this employer-friendly ruling by following these simple steps:
  1. Require employees seeking FMLA leave to submit medical certifications from their physicians;
  2. Remind the employee (this policy should already be stated in your employee handbook), in a letter discussing their request for FMLA leave, the company requires them to submit a medical certification substantiating the need for leave within a proscribed time period (the FMLA requires you to provide your employees with at least 15 days, but you can give them more if you wish);
  3. Remind the employee they will be terminated for unexcused absences if they fail to provide the certification within the proscribed period; and
  4. Enforce the policy in a neutral and consistent fashion.

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