In a case that could be summarized as “No Good Deed Goes Unpunished,” the Fourth Circuit issued an opinion in the case of Howard vs. Inova Healthcare Services, dated December 5, 2008. A copy of the opinion is here. More after the break.
This case involved interference and retaliation claims under the Family and Medical Leave Act (“FMLA”). The plaintiff in the case had taken repeated authorized medical leaves from his position with the hospital. The factual background section of the opinion describes at length the process of these leaves, the plaintiff’s documentation of his need for leave, his periodic failure to provide documentation, and the employer’s patient efforts in putting up with his failure to comply with the certification process. Eventually, the plaintiff’s failure to comply with the certification requirements resulted in his termination.
The court ultimately found in favor of the employer on the FMLA claims. In reaching its decision, the court pointed out several FMLA provisions. First, an employer may request recertification of a chronic or permanent long-term condition under continuing supervision of a healthcare provider at least every thirty (30) days in connection with an absence by the employee. (29 C.F.R. Section 825.308(a)) Second, when asked by an employer pursuant to a uniformly applied policy to provide medical certification at the time the employee seeks reinstatement at the end of FMLA leave, unless the employee provides either a fitness for duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded, the employee may be terminated. (29 C.F.R. Section 825.311(c))
Although the opinion is forty (40) pages long and deals with a number of technical legal issues, footnote 1 of the opinion is perhaps most revealing of how the case was going to come out. In footnote 1, the court notes “Howard admitted that he filled out most of the form and asserted in his deposition that his physician, Dr. Rodney Diad, authorized him to do so. In a deposition, Dr. Diad testified that he had not authorized Howard to fill out of the form.” In other words, the employee admitted to having filled out the physician’s certification himself and the doctor denied authorizing him to do so. Undoubtedly, this piece of evidence effected the court’s decision. This one fact, when coupled with the lengthy statement of facts detailing the company’s efforts to work with the employee over a long period of time, are important reminders to employers that it is important to approach the court with clean hands. Any actions by the employer that can be construed as bad faith or deceptive will be taken into consideration by a judge or appeals panel in deciding a case.
