MIEDEMA v. FACILITY CONCESSION SERVICES, INCORPORATED
United States Court of Appeals, Fifth Circuit.
Filed: September 6, 2012.
The conclusion that Spectrum's request is for an initial certification follows naturally from the purposes of the two procedures. Under 29 C.F.R. §§ 825.306-.307, the very nature of the certification is to apprise the employer of a few basic items of information regarding the employee's condition, the duration of any disability, and its effect on employment. In contrast, the purpose of a recertification under 29 C.F.R. § 825.308 is threefold: to verify (1) that the employee's condition has persisted beyond an initial recovery period, (2) that the condition still exists in light of a significant change in circumstances, or (3) that the employee's condition exists in light of new information which casts doubt on the employee's claim.
In this case, it is undisputed that Spectrum requested an FMLA certification from Miedema, and that Miedema's physician responded with a conclusory letter. Spectrum immediately sent a second letter to Miedema, informing her that it would cover her leave under the FMLA, but that it still required the information requested on the Certification of Healthcare Provider form. The second letter does not reflect that it was being sent for any of the reasons contemplated by the recertification provision of the FMLA. See 29 C.F.R. § 825.308 Rather, we read Spectrum's letter as an attempt to obtain more specific facts than the general information Miedema provided in her response to the first letter. This is precisely the type of situation contemplated by 29 C.F.R. § 825.305(c), which allows the employer to follow up and obtain the specific information it needs when the employee's certification is incomplete or conclusory. Such a request for more specific information falls within the original request for certification and is not a request for recertification. See id.
"An employer may require that a request for leave . . . be supported by a certification issued by the health care provider for the eligible employee . . . . The employee shall provide, in a timely manner, a copy of such certification to the employer." 29 U.S.C. § 2613(a). An employer may require that the certification include (1) the date on which the condition commenced, (2) the probable duration of the condition, (3) the appropriate medical facts regarding the condition and supporting the need for leave, and (4) a statement that the employee is unable to perform the functions of her employment position. 29 C.F.R. § 825.306(a). A document which includes such information is statutorily deemed sufficient. See 29 U.S.C. § 2613(b).
Here, Spectrum properly notified Miedema in writing of its request for an FMLA certification on October 15, 2007. As the district court correctly points out, Dr. Sweeney's letter in response fails to provide both the beginning date of her condition and its probable duration. It thus fails to meet the requirements of a statutory certification. See 29 U.S.C. § 2613(b); see also Burge v. Dep't of Air Force, 7 F. App'x 931, 934 (Fed. Cir. 2001) (unpublished) (finding physician's letter to be insufficient FMLA certification under similar facts). Although Spectrum's initial request for FMLA certification did not specify in detail the information it sought, Spectrum immediately responded to Miedema's letter by re-requesting and attaching the previously-referenced FMLA certification sheet.
When requested, "The employee must provide a complete and sufficient certification." 29 C.F.R. § 825.305(c). If an employer finds an employee's initial response either incomplete or insufficient, the employer shall advise her of such and "shall state in writing what additional information is necessary to make the certification complete and sufficient." Id. After seven days, if a completed certification has not been resubmitted with the requested information, "the employer may deny the taking of FMLA leave." Id.
Here, upon receipt of Dr. Sweeney's letter, Spectrum promptly notified Miedema of its continuing need for the requested information. In its October 25, 2007 letter, Spectrum expressly stated its request for more information and requested the completion of an attached Department of Labor "Certification of Health Care Provider" standard form. Notwithstanding Miedema's assertion to the contrary, the specific provisions of the attached DOL form served to sufficiently apprise Miedema of the information she was obliged to provide. Because Spectrum received no response within seven days, it was entitled to deny Miedema leave under the FMLA. See 29 C.F.R. § 825.305(c); see also Bailey v. Sw. Gas Co., 275 F.3d 1181, 1186 (9th Cir. 2002) (finding physician's response inadequate where FMLA standard form was returned incomplete); 29 C.F.R. § 825.303(b) ("An employee has an obligation to respond to an employer's questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection . . . .").
The failure of Spectrum's second letter to advise Miedema of the consequences of an inadequate response does not change this conclusion. The FMLA only requires an employer to advise an employee of the consequences of failing to respond to a certification request "[a]t the time the employer requests certification." 29 C.F.R. § 825.305(d). The record shows that Spectrum fully complied with this notice requirement in its October 15, 2007 initial request for certification, in which it stated: "Failure to comply with all of the above . . . will be considered an unauthorized leave and subject to termination at that time." The regulation contains no requirement that follow-up communications include the same notice, and we decline to add such a requirement here.