Administering and policing Family and Medical Leave Act requests means reviewing medical reports submitted by employees in support of their absences. When something looks fishy about an FMLA medical certification, the employer can — and should — confirm the report is bona fide and makes sense. If not, an employer may have the right to discipline or fire the employee.
The original medical certifications
Michael Shipton worked in a physically demanding job as an underground gas mechanic for Baltimore Gas & Electric (BGE). Shipton suffered from Type 2 diabetes, which caused him to periodically miss work when his symptoms flared up.
Shipton provided BGE with an FMLA medical certification. In it, Shipton’s doctor reported that he was an uncontrolled diabetic who experienced episodes of hypoglycemia. Based on the certification, BGE granted him intermittent FMLA leave. Several months later, Shipton submitted a nearly identical certification to support his continued intermittent FMLA leave.
Later medical reports
Shortly after submitting his second, nearly identical certification, Shipton missed two days of work due to neuropathy caused by his diabetes — specifically, severe foot pain. BGE pointed out to Shipton that his FMLA medical certifications only provided for leave relating to his hypoglycemia and that they did not establish the right to any leave for neuropathy. BGE also told Shipton it was becoming concerned about whether he could safely operate the company’s vehicles, which was required for his job.
To allay his employer’s worries about his ability to perform his job, Shipton submitted two items. First, he provided a letter from his doctor stating Shipton had not suffered from hypoglycemia for two years. Additionally, Shipton submitted a medical certification from his endocrinologist. This new certification described for the first time his neuropathy symptoms.
Shipton had originally submitted medical certifications supporting his absences due to hypoglycemia and took FMLA leave based on those certifications. Later, Shipton submitted letters from the same healthcare provider stating he had not experienced hypoglycemia for more than two years. After investigating the circumstances and reviewing Shipton’s medical documentation, BGE believed he had been misusing leave. BGE fired Shipton.
Employer could act on its ‘honest belief’
Shipton sued over his firing. Among other claims, Shipton accused BGE of ending his employment in retaliation for him taking FMLA leave.
For an FMLA retaliation claim, Shipton had to prove BGE’s intent — that BGE intended to fire him on account of his FMLA leave. An employer does not violate FMLA’s anti-retaliation provision if it fired an employee based upon its “honest belief” that the employee was not taking FMLA for approved reasons. That is the case even if the employer’s “honest belief” that the employee was abusing FMLA leave later turns out to be incorrect. Here, Shipton’s conflicting paperwork and BGE’s investigation reasonably gave rise to an honest belief on the part of the employer at the time of his firing that Shipton was misusing FMLA leave — even if that later turned out not to be the case. Accordingly, the court found in favor of BGE and against Shipton on his FMLA retaliation claim.
Don’t go medieval on all FMLA requests
This doesn’t mean employers should subject all employees requesting FMLA leave to the Spanish Inquisition.
It does mean employers act appropriately when they carefully scrutinize FMLA medical certifications. If questions or inconsistencies arise from medical certifications or leave circumstances, review the documentation and investigate thoroughly. That includes talking with the employee in an effort to resolve questions or to identify potential FMLA abuse.
- Shipton v. Baltimore Gas and Electric, et al, Case No. 23-1360 (4th Cir. 7/31/24)
