Employee Not Protected by Post-Termination FMLA Certification

Employers are sometimes frustrated by the expansive scope of protections for employees under the Family and Medical Leave Act, but a recent case makes the point that an employee is not protected until they establish that they have a serious health condition.

In Rodriguez v. Southeastern Pennsylvania Transportation Authority, the employee had numerous absences in violation of the attendance policy. His last absence was due to a migraine. Following an informal hearing in which his termination was recommended, the employee requested FMLA leave and obtained an FMLA certification from his doctor. Nonetheless, he was terminated, and he subsequently sued for retaliation and interference with his FMLA rights. At trial, the jury found for the employee on his interference claims and for the employer on his retaliation claim, but the defendant moved for judgment as a matter of law (meaning that, given the facts, the employee had no viable claims under the law). The trial court granted the motion, and the employee appealed.

The U.S. Court of Appeals for the Third Circuit affirmed judgment for the employer. To establish an FMLA interference claim, an employee must demonstrate that they have a serious health condition within the meaning of the FMLA, that they gave appropriate notice of their need to be absent from work, and the employer interfered with their right to leave. The Third Circuit also noted that “the operative time for determining whether a particular condition qualifies as a serious health condition is the time that leave is requested or taken.” In this case, the employee could not meet the criteria for a serious health condition at the time of the leave. Under the FMLA, to be a chronic serious health condition (which migraines may be), the employee must make periodic visits (meaning at least twice a year) for treatment by a health care provider. Here, the employee had not visited a health care provider prior to his termination. And even though he visited one afterwards, the certification applied only prospectively. As the Third Circuit observed, “A patient does not have a ‘serious health condition’ under [the FMLA] if he waits to see a healthcare provider until after the relevant absences.”

Thus, this case supports the position that an employer can hold employees accountable for attendance issues – even those caused by a medical condition – if the employee has not requested FMLA leave or obtained certification of a serious health condition to cover those absences. Of course, if an employer is aware that an employee’s medical condition might be covered by the FMLA, they have an obligation to inform employees of their FMLA rights and refrain from disciplining them for FMLA-covered absences. But in situations, such as this one, where the employer would not have known, it is incumbent upon the employee to trigger the protections of the FMLA; they do not automatically apply.