Wong Fleming


Diverse Viewpoints on the Law

November 13, 2012
Issue #12
Fifth Circuit Decides Favorably for Employer In FMLA Certification Case:
Cover Bases with Proper Notice

By Ramina Dehkhoda-Steele
     Partner - Bellevue, WA
           A Fifth Circuit court in Miedema v. Facility Concession Services, Inc. decided favorably for an employer, regarding certification requirements for FMLA-based medical leave. 29 C.F.R. §825.313(b) specifically states: “if the employee never produces the certification, the leave is not FMLA leave.” Although certification is necessary for an employee to establish their FMLA-based claim, the employer must ensure that they have followed the proper notice requirements as outlined in 29 C.F.R. §825.300.
          In Miedema v. Facility Concession Services, Inc., Spectrum issued notice to Miedema on October 15, 2007. The employer requested a written statement concerning a work incident which prompted the medical condition, doctor’s authorization to return to work, FMLA certification to document Miedema’s medical condition and the attached certification form. The court noted that in this letter, “Spectrum expressly stated its request for more information and requested the completion of an attached Department of Labor ‘Certification of Health Care Provider’ standard form.” A month after the initial notice, Spectrum proceeded to contact Miedema and her attorney outlining that in order for Miedema’s leave of absence to be covered under FMLA, she was required to return a completed certification. Miedema did submit a doctor’s note explaining that she was being treated from Post-Traumatic Stress Disorder and would be unable to work, Miedema never responded with the required certification. As a result, Spectrum deemed the absence as unexcused and thereby terminated her employment.

          The court in Miedema noted that even after the requisite 15 days elapsed, Spectrum provided the employee with additional notice, this was not necessary. The court found that “the regulation contains no requirement that follow-up communications include the same notice, and we decline to add such a requirement here.” Instead, the court focused on the initial notice that was given to Miedema as meeting the requirements laid out in 29 C.F.R. §825.300. Once an employer has given an employee the necessary notice documenting the certification requirement, the employee must then provide the certification.

          In this case, the court found it favorable that Spectrum followed the rules outlined by FMLA regulations and subsequently Spectrum won the case. This then begs the question, what can employers do to proceed favorably in litigation?

What employers should take away from Miedema:
  1. Request Information. If information provided by employee is insufficient to make a FMLA determination, the employer has the duty to give the employee seven days to “cure any such deficiency.” If after notice to employee that more information is required and the requisite seven calendar days has elapsed, the employer may deny FMLA leave. See 29 C.F.R. §825.305(c).
  2. Ensure Notice is Given. Make sure in the notice letter to expressly state any requests for more information, the required completion of certification, the deadline by which the materials must be returned, and to attach the DOL Certification form.
  3. Follow-up. Although the court in Miedema did not require employers to issue a follow-up letter, it might be in the employer’s best interest to lay out additional notice re-emphasizing the certification requirement and a reasonable deadline for the form to be returned.
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