Labor and Employment Law Weekly Update (Week of November 29, 2010)
A former UPS employee recently had her claims reinstated against her employer, relating to denial of her request for 10 weeks of FMLA leave to care for her autistic son. Stroder v. United Parcel Service, Inc. 2010 WL 3447274 (M.D.N.C.) (http://tinyurl.com/2frvr76).
Although Veda Stroder's son had not yet been diagnosed with autism at the time of her request for FMLA leave, he had been diagnosed with a learning disability and speech impairment that required ongoing speech therapy. The medical certification submitted by the son's pediatrician indicated that he had a "chronic serious health condition" based on "very significant delays in communication." It also stated that Ms. Stroder needed to be absent from work because her son required assistance for basic medical or personal needs or safety and because her presence to provide psychological comfort to her son would be beneficial to his recovery. Human Resources Occupational Health Supervisor Ralph L. Brown, Jr. concluded that the child's speech delays and need for speech therapy did not constitute a "serious health condition."
Ms. Stroder contends that she later provided additional information about her child's condition, including that he was being evaluated for autism and hearing loss. Mr. Brown denied Ms. Stroder provided him with additional information. The Court held that to the extent Ms. Stroder may have presented Mr. Brown with additional information beyond what was contained in the medical certification or which rendered the medical certification ambiguous regarding the extent of the child's issues, Mr. Brown could have requested additional information and certification from Ms. Stroder. If the medical certification was viewed as incomplete, Mr. Brown was required to provide Ms. Stroder with notice of the deficiency and a reasonable opportunity to cure the deficiency. 29 C.F.R. 825.305.
The Court agreed that Ms. Stroder's employer did not have to obtain a second opinion but noted that there are potential pitfalls for an employer who chooses not to pursue a second opinion. The "FMLA is not designed to reward employers who avoid obtaining further information or certification where needed." An employer's failure to determine whether leave should be designated as FMLA-protected may not shield the employer from liability. The Court found the employer was not entitled to disregard the information and was obligated to inform Ms. Stroder of the need for additional information if the medical certification was incomplete.
Employers who have doubts regarding FMLA eligibility should not deny the leave without first considering sending the employee for a second medical opinion or requesting additional information from the employee or her original health care provider.
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