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Doctor’s Note May Not Be Enough To Get You FMLA

by | Dec 27, 2022 | Employment Law, Family Medical Leave Claims, Federal Law Update, Retaliation, Wrongful Termination |

What is the FMLA and how do I use it?

The Family and Medical Leave Act (“FMLA”) is a federal law that gives eligible employees of covered employers the ability to take 12 weeks of job-protected, albeit unpaid leave for serious personal or family medical reasons.

To request FMLA leave under nonemergency situations, an employee needs to comply with the company’s “usual and customary notice and procedural requirements for requesting leave.” 29 C.F.R. §§ 825.302(d), 825.303(c). Once that happens, the employer needs to ascertain the employee’s eligibility under the FMLA for the requested leave; and may also require the employee to provide medical certification to support the reason given for the leave.

Can my job require more than a doctor’s note as part of the FMLA certification process?

Yes. The FMLA allows employers the choice to require a health care provider certification that supports an employee’s need for leave, and further require that such medical certification be submitted on a Department of Labor form or on another form that collects the same information. 29 U.S.C. § 2613(a); 29 C.F.R. § 825.306(b). This means that should an employer require the use of a specific medical certification form, the employer must provide the information on that form and cannot simply provide a doctor’s note.

With this in mind, let’s look at the recent case of Kuramoto v. Heart & Vascular Center Of Arizona PC, No. 21-17004, 2022 WL 17883605 (9th Cir. Dec. 23, 2022), where the United States Court of Appeals for the Ninth Circuit played to role of Grinch right before Christmas. Christopher Kuramoto was hurt in a car accident and requested leave under the FMLA. His employer provided the DOL form for the medical certification and fired Kuramoto after he provided several doctor’s notes and medical records. He sued for retaliation and wrongful termination for violation of his FMLA rights.

In a very short summary opinion, the Ninth Circuit affirmed the dismissal in favor of the employer and held:

Although Kuramoto submitted various medical records and doctor’s notes, he concedes that he never returned the requested certification form, even after prompted to do so multiple times by the Center. Because he never submitted a certification, the Center was not required to provide him written notice of the certification’s deficiencies and seven days to cure any deficiencies, as is required for incomplete and insufficient certifications. 29 C.F.R. § 825.305(c). Thus, his leave was not protected by the FMLA. 29 C.F.R. § 825.313(b).

This decision is problematic for employees because it holds that employer, who by law has to provide an employee notice and time to correct certifications that are not complete, can avoid this obligation if the employee does not return the information on the proper form. Thus, an employee who turns in a nearly blank form with nearly no information, is entitled to notification and seven days to cure the deficiency, but an employee who provides all of the requested medical information and even attaches medical records in response to an employer’s request for a form can be outright denied FMLA with no warning! This is utter madness that makes no practical sense.

Thankfully, the United States Court of Appeals for the Ninth Circuit’s decision in Kuramoto is only binding on the district courts in Alaska, Arizona, California, Hawaii, and Guam. Hopefully, other United States Court of Appeals will see the frivolity of placing form over function. But Courts do and will get it wrong. (See Some Judges Will Just Get Employment Law Wrong; According To Judges, Are Bumblebees Considered Fish?; Judges Disagree Whether Elephant Is Person).

As for those employees working in states covered by the Ninth Circuit, our medical leave attorneys’ best advice is to make sure that your medical provider knows that the requested form needs to be directly filled out. But if your medical provider will not do so and only provides you a note or medical records, staple your employer’s requested form to the front of the medical documentation and write “see attached” in response to every question. While this may or may not be accepted your employer, it should (but maybe not) at least trigger your employer’s obligation to notify you of a deficiency and give you seven days to cure. Hopefully, such written notice of a deficiency will get your doctor to understand the importance of completing the form as provided.

Best FMLA Lawyer Blogs On Point:

What should I do if was fired after asking for FMLA leave from work?

Best Ohio Employment Lawyer Answer: If your Family Medical Leave Act (FMLA) rights are being violated, be it FMLA interference or FMLA retaliation, you need to call the right attorney right now to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Like many employment laws, the FMLA is complex and not easy to navigate on your own. The medical leave rights lawyers working at Spitz, The Employee’s Law Firm are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment law. Our lawyers fight hard to get you the FMLA leave that you are entitled to or fight to get you paid for being wrongfully fired.

Disclaimer:

This employment law website is an advertisement. The FMLA materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you were wrongfully fired or otherwise retaliated for exercising your FMLA rights, your best option is to contact the best medical leave law firm near you to obtain advice regarding your specific FMLA questions and any particular employment law issue that you may be facing. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, LLC, Brian Spitz, or any individual attorney.