If Employee Does Not Request FMLA Leave, Employer Cannot Demand Certification From Doctor

The Family and Medical Leave Act (FMLA) allows employers to request medical certification from employees who request leave under the Act. The FMLA also allows an employer to unilaterally designate leave taken by an employee as FMLA leave, even over the employee’s objections.

A New Jersey appellate court recently had to decide whether employer-designated FMLA leave allows an employer to demand medical certification. The case involved an employee of the Township of Parsippany-Troy Hills who wanted to use paid sick leave rather than unpaid FMLA leave when taking approximately four to six weeks off from work to care for a sick relative. The Township asked the employee to submit an FMLA certification form completed by a health care provider and threatened suspension when he initially refused.

Threading its way through the Department of Labor’s regulations, the Court found that the employer had no right to demand certification when it, rather than the employee, designated time off as FMLA leave. The Court found that “based on the regulations, employees must provide employers with sufficient information for the employers to determine whether they are eligible for FMLA leave before an employer must designate leave as being FMLA leave. An employee’s failure to provide sufficient notice to his or her employer may result in a denial of FMLA leave. The regulations indicate that an employee may not be entitled to FMLA leave if he or she does not provide sufficient information to his or her employer because employers are ‘entitled to the sort of notice that will inform them that the FMLA may apply.’

“The FMLA regulations do not address an employer’s duty to designate the leave as FMLA-qualifying when, as in this case, the employee declines FMLA leave and wishes to use paid leave. Although these regulations place a duty on the employers to inform employees when they are eligible for FMLA due to the employee’s length of employment and the number of employees employed by the employer, the employers need not provide an employee with notice of whether or not his or her leave is covered by the FMLA, i.e., designation notice, until the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason (e.g., after receiving a certification). If the employee specifically states that he or she is not requesting FMLA leave, employer may not require a medical certification.”

The Court had to deal with the Township’s argument that it faced potential liability under the FMLA if it was unable to require its employees to submit medical certifications because without this information the Township would be unable to fully inform an employee of his or her FMLA rights. The Court disagreed, finding that “in order for the Township to be liable under the FMLA, the employee would have to show that he was prejudiced by the lack of information about FMLA leave. Here, the employee could not have shown prejudice because he specifically stated that he did not intend to take FMLA leave. The Township does not face potential liability where the employee unequivocally states that he does not want to take FMLA leave. In the narrow instance when an employee declines FMLA leave, it is presumed that to prevent liability under the Act, the employer will document that it provided the required notice and issued a notice documenting the employee’s choice to decline FMLA leave and failure to complete the medical certification form.”

In re Township of Parsippany-Troy Hills, 17 A.3d 834 (N.J. Super. A.D. 2011).

This article appears in the August 2011 issue