Don’t leave blanks in the designation notice


Tell employees what they need to know

Gerald began having blood pressure issues at work. Over the span of about a month, he had a handful of related doctor appointments and trips to the emergency room. He informed his employer of the issue when it began and as things evolved, and early on was asked to provide an FMLA certification supporting his need for leave. The initial certification supported leave for the first half of the month. As time and more doctor appointments passed, he provided more information, but the employer denied FMLA protections for the second half of the month.

In its designation notice denying the leave, the company did not complete the spaces indicating what, if any, additional information was needed, and it did not indicate the dates of the denied leave or specify which time off requests were denied. In an accompanying letter, the company stated that the reason for the denial was only “does not meet criteria.” The company received an updated certification at the end of the month. On the same date, the employer fired Gerald for exceeding attendance points.

Under the company’s attendance policy if employees requested leave under the FMLA, they would collect attendance points while the request was under consideration by HR. Points were, however, removed once the FMLA leave was.

Gerald sued, arguing that he was assessed attendance points for leave that was FMLA-protected. The employer argued that at least a few of those days were not protected because of certification issues (yet it assessed points throughout the entire month). The employer indicated that it was entitled to a certification before approving the leave request and Gerald had not provided complete and sufficient certification for all the leave he took before he had collected too many points.

In finding against the employer, the court pointed out that one of its errors was that it failed to specify in writing any deficiencies it saw in Gerald’s later certification. It never provided Gerald with reasons for the denial nor stated what missing information it needed to approve the leave. It did not specify what criteria were not met or how Gerald could have met the criteria.

Such failure, followed by a denial of FMLA leave and resulting termination of employment amounted to interfering with Gerald’s protected FMLA rights, and Gerald won summary judgment on his FMLA interference claim.

Gonzalez v. JBS Live Pork, LLC, (C.D. Ill.), No. 18-cv-03044, February 7, 2022.

Takeaway: If an employee’s certification is incomplete and/or insufficient, you are obligated to tell the employee what, specifically, is needed to fix it. Simply indicating that it “does not meet criteria” is not enough, as this employer learned. Don’t leave applicable entries on the designation notice empty.

Key to remember:  If a certification is incomplete or insufficient, tell employees what is needed to fix it. Failure to do so would risk an interference claim.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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