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FMLA LEAVE: ‘Negative certification’ Invalid If Certification Request Not In Writing

Kentucky Employment Law Letter, Vol. 21, No. 2
November 2010

When an employee remains absent after her physician provides medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee additional Family and Medical Leave Act (FMLA) leave. It also might seem reasonable to terminate the employee if she fails to return after her FMLA leave has been denied. However, in a recent case, the Sixth U.S. Circuit Court of Appeals (which covers Kentucky) found that an employee could proceed with her FMLA claim, even after she provided her employer with a “negative certification” from her doctor and continued to miss work. Read on to find out what happened. 


Deborah Branham was hired in November 2003 as a receptionist for the Dickson Herald, owned by Gannett Satellite Information Network, Inc. She was terminated for excessive absenteeism in January 2004 and rehired in July 2005. She was terminated again in November 2006 for failing to follow the company’s attendance policy. 

Branham’s absences began on November 7 when she called in and said her son was ill. She then missed several more days, stating that she was sick. On Monday, November 13, her husband left a message for Tracy Buhler, Gannett’s office manager, stating that she was still ill. Later that day, Branham visited her physician, Dr. Pamela Singer. Her doctor said she could return to work the following day with no restrictions. Branham called Buhler and told her she would be back the next day but needed to be absent to attend other doctors’ appointments in November and December. Buhler asked her to come into the office to fill out some forms to see if she qualified for short-term disability. 

The next day, Branham failed to come to work or call in to explain her absence. In fact, she remained absent for most of the next two weeks, complaining of migraine headaches, nausea, depression, and insomnia. She was told she needed to provide medical certification to support her absences, but she failed to do so. She did tell her supervisor that another doctor, Dr. Koster Peters, should have filled out her certification form and that the one filled out earlier by Singer was inaccurate. However, the company asked both doctors to review the certification form for accuracy and was advised that Peters hadn’t seen Branham and thus couldn’t complete a certification form for her. 

On November 24, Branham was terminated for violating the company’s attendance policy. On November 28, she provided Gannett with a second certification — this time, from a nurse practitioner. The certification indicated that her medical condition prevented her from returning to work until January 1, 2007. 

On July 18, 2008, Branham filed a complaint in U.S. district court alleging that Gannett violated her FMLA rights by (1) interfering with her use of FMLA leave and (2) terminating her in retaliation for seeking FMLA leave. Gannett asked the district court to dismiss the case without a trial. On August 19, 2009, the court granted Gannett’s request, concluding that Branham failed to present enough evidence for the case to go to a jury. According to the court, Gannett was entitled to terminate Branham when it received a “negative certification” from Singer. Branham appealed to the Sixth Circuit. 

Sixth Circuit’s decision 

This was the first time the court had been faced with deciding such an issue — that is, whether Gannett was entitled to act on Singer’s negative certification before the FMLA-prescribed 15-day period to obtain supporting medical certification had elapsed. However, the Sixth Circuit indicated that it didn’t need to rule on that issue because Gannett never effectively triggered Branham’s obligation to provide medical certification. While Buhler orally requested certification on November 13, the court found that the FMLA requires employers to request certification in writing and to inform employees of the consequences if they do not comply. Gannett didn’t do that. 

Because Branham’s testimony was sufficient to establish a genuine fact issue about whether she suffered from a serious medical condition that prevented her from doing her job, the Sixth Circuit reversed the district court and instructed it to let a jury decide whether she was entitled to FMLA leave. Branham v. Gannett Satellite Information Network, 2010 WL 3431617 (6th Cir., Sept. 2, 2010). 

Bottom line 

This case serves as a warning to employers that are subject to the FMLA. Even though the employee’s treating physician certified that she was fit to return to work, the employer’s failure to follow the requirements of the FMLA left it at the mercy of a jury to decide whether it interfered with her rights under the Act. As this case illustrates, medical certification requests must be made in writing, and the employee must be notified of the consequences if she fails to provide the certification. Using the proper eligibility notice form and having a consistent FMLA policy can go a long way toward eliminating the risk of a lawsuit. Additionally, you should carefully review the facts and circumstances of each case to ensure that the employee has received all required FMLA notices and been given an adequate opportunity to submit documentation before terminating her for not returning to work. 

You can research the FMLA or any other employment law topic in the subscribers’ area of, the website for Kentucky Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge. ✤

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2010 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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