Many employees seek FMLA leave for more than one medical condition within the same year. This can create difficulties for both employee and employer. It is important to read medical certifications carefully, as is noted in Greer v. Cleveland Clinic Health System – East Region, 2012 U.S. App. LEXIS 22594 (6th Cir. 2012).
The plaintiff Greer was a part-time Support Services Assistant delivering meals to patients and transporting patients and medicine. Greer had surgery to his hand before he started working with Cleveland Clinic. He also had problems with his foot. He was diagnosed with Type II diabetes and requested FMLA continuous leave on December 7, 2007 for his hand. There was no mention of the foot in the certification form. Greer sought leave from December 7, 2007 through March 8, 2008. His chiropractor filled out a certification stating that Greer needed up to four weeks of continuous leave followed by eight weeks of intermittent leave. Greer took off work from December 7-17. During that period of time he also saw a podiatrist for his foot, which had a diabetic ulcer.
A mixup occurred on the Clinic’s end, which failed to notify Greer that his FMLA request had been approved. Since Greer never received formal approval, he returned to work on December 17, 2008. After he returned to work, he began to have problems with drug use and entered an employer-sponsored EAP program.
In May 2008, Greer experienced additional problems with his foot and submitted an FMLA request for both continuous leave and intermittent leave related to the foot. The Clinic approved six weeks of FMLA continuous leave but not intermittent leave. By the time Greer was approved in May 2008, he already had many unapproved absences.
The Clinic tracked work absences and had a progressive discipline system with points assessed for unexcused tardies and absences. From June 2007 to April 2008, Greer accumulated 32 points, including a few no-call/no-show days. That was more than the 24 points allowed by the employer. On July 18, 2008, Greer did not call in or show and his employment was terminated. Greer explained that he had fallen asleep due to pain medicine he was taking.
Greer sued under the FMLA for interference with his rights and for retaliation. First, Greer argued that the failure of the Clinic to notify him of his approved leave from December 7, 2007 caused him to incur absences that might otherwise have been protected under the FMLA. He also argued that he indicated to the Disability Plan Office in December 2007 that he was seeking leave for his hand and foot. But the Clinic pointed out that the actual medical certification form only referenced the hand. The Court held that Greer got his FMLA leave for 10 days for the hand and therefore had no claim for FMLA interference as to the hand. It also held that Greer did not make a request for leave as to the foot in December 2007.
If a medical certification requires the aforementioned details regarding a condition, a finding that the condition at issue be specifically named in the certification is implicitly required. Greer’s certification for his December 7, 2007 request wholly lacked any mention of his foot condition and thus cannot be deemed sufficient.
In sum, the Court held that Greer failed to provide proper notice to the Clinic about his foot condition. He failed to seek leave for his foot in December 2007.
Greer also argued that the Clinic interfered with his rights in failing to approve intermittent leave when he requested it in his May 2008 FMLA certification. The Court also scrutinized the May 2008 certification which said that Greer could not work for one month as a result of his foot. The Court said that the Clinic properly construed this as a request for continuous leave, not intermittent leave, and it made no difference that the doctor checked off both intermittent and continuous leave, since the reality was that the request was for one set block of time.
In his retaliation claim, Greer argued that there was a very close time period between his request for FMLA for his foot in May 2008 and his termination such that the Court could assume retaliatory conduct. The Clinic pointed out that it had a neutral attendance policy which only assessed points for non-FMLA absences and tardies. Even if some of the absences between December 2007 and March 2008 would have been FMLA protected, the Court noted that Greer failed to call in or show at work several times. “Greer failed to notify the Clinic in advance of certain tardies and absences and likewise failed to provide any explanation for them after the fact.” Therefore the Court affirmed summary judgment to the employer Cleveland Clinic.
The take-away for employers it that employees can be held to the terms of their medical certifications. If new medical conditions arise necessitating additional leave, a new certification needs to be completed. If a doctor writes that an employee needs a block of time, such as a month of continuous leave, the employer has a right to consider this a request solely for continuous leave.
This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.