FMLA 15-day rule
satisfied with warning memos
Hospital did not interfere
with FMLA rights in discharge case
Under federal regulations adopted by the US Department of Labor, an employer that requires an employee to provide certification from a doctor for FMLA leave must also provide at least fifteen days to come up with the certification, and notice (of no less than fifteen days) of the consequences of failing to provide the certification. 29 CFR §823.301(b)(1), 29 CFR §825.305(b) and (d). Is an employer in violation of the law if it provides the notice of consequences using “corrective action reports” over a span of time, the firing the employee for failure to provide the certification?
No, according to Federal Judge McCuskey in Illinois, Riddings v. Riverside Medical Center, ___FSupp2d___, 12 WH Cases2d 97 (C.D. Illinois December 2006).
Riddings was a “knowledge manager” who contracted Graves’ disease, requiring surgery for which she took FMLA leave in January 2003. Upon her return from leave the following month Riddings began a practice of leaving early each day, thereby failing to put in the eight hours required of her. From time to time her boss questioned her about this practice, but she persisted in ducking out for the rest of the year. She claimed that she had continuing “mental fatigue” from the surgery, necessitating her early departure.
Eventually her boss confronted her and counseled her on January 4, 2004. He gave her an FMLA intermittent leave form, requiring medical certification that she had continuing mental fatigue related to disease. The form stated that she should return it within fifteen days “or her leave request could be delayed.” When she failed to submit a certification and continued to leave early she received a corrective action report. This report again asked for certification within fifteen days and warned her that she could be suspended if she failed to submit it, and if it were not returned at the end of her suspension she could be dismissed. When she still failed to provide a certification, she was issued another corrective action report in May 2004; it required that the certification be returned by May 13, 2004. She again failed to comply and was fired.
Riddings sued, alleging, among other things, that Riverside had ignored the fifteen day notice requirement under the FMLA, and interfered with her rights under the law. She was entitled to a notice of no less than fifteen days prior to the date she was terminated.
No she wasn’t, the court ruled. The corrective action reports, combined with the intermittent leave form given to her in January 2004, represented sufficient written notice of the consequences of failing to provide certification.