3d Cir: No serious health condition? No problem. You too may have FMLA rights.


Yep, in this precedential opinion, the Third Circuit Court of Appeals created a Family and Medical Leave Act loophole that could protect “the most frivolous leave requests.”

Folks, if your business is covered under the FMLA, and you’ve ever had to deal with a questionable medical certification for an employee’s serious health condition, read on…


An ineligible employee submits an insufficient FMLA certification.

Deborah Hansler worked for Lehigh Valley Health Network. In 2013, her health deteriorated, so, she submitted an FMLA medical certification requesting leave for two days a week for approximately one month. However, the medical certification neither identified the nature of her serious health condition nor the duration of her condition.

Ms. Hansler missed several days of work, after which Lehigh Valley allegedly fired her for excessive absences and without seeking any clarification about her medical certification. It also denied her FMLA leave request. Indeed, it wasn’t until weeks after her termination, that Ms. Hansler received a diagnosis of diabetes and high blood pressure. Thus, when she submitted the insufficient medical certification, Ms. Hansler was ineligible to take FMLA leave because she did not have a serious health condition.

However, because of the certification mishegas, Ms. Hansler sued for FMLA interference and retaliation.

The hospital should have sought clarification.

Under the FMLA, it is unlawful to interfere with an employee’s right to take leave (FMLA interference), or take action against an employee because she exercised FMLA rights (FMLA retaliation).

Here, according to the Third Circuit Court of Appeals (opinion here), Ms.Hansler articulated claims for both against Lehigh Valley, arising from Lehigh Valley’s failure to ask Ms. Hansler to clarify her FMLA certification.

Upon receipt of her insufficient certification, Lehigh Valley was required to (1)advise Hansler that her certification was insufficient, (2) state in writing what additional information was necessary to make it sufficient, and (3)provide her with an opportunity to cure before denying her request for leave. See 29 C.F.R. § 825.305(c). Lehigh Valley ignored these requirements and, instead, terminated Hansler without first notifying her that the request for leave had been denied. Hansler may premise her interference claim on these alleged regulatory violations.

Hansler alleges she attempted to invoke her right to leave, she was not advised of deficiencies in her medical certification, she was not provided a cure period, and she was fired a few weeks later as a result of her leave request. Through discovery, Hansler might be able to show that Lehigh Valley had a retaliatory motive and that the stated reason for termination was pretextual.

A blistering dissent highlights the unintended consequences of the Court’s ruling.

In her dissent, Judge Roth put the majority on full blast. I’ll share with you the first and last paragraphs:

The majority fashions a new rule to fit a sad case. In early April of 2013, Deborah Hansler was diagnosed with diabetes and high blood pressure. Had these conditions been diagnosed just days earlier when Hansler applied for FMLA leave, she would have been entitled to medical leave under the Family and Medical Leave Act ensuring her time to treat her illness and a position upon her return. Instead, Hansler was denied leave and terminated from her job at Lehigh Valley. While I too sympathize with Hansler’s situation, I cannot subscribe to the majority’s strained reinterpretation of the FMLA.

Going forward under the Majority’s rule, you will now be able to maintain an interference claim against your employer regardless of your condition when you request leave if you claim that your diagnosis changed or was not finalized until after you submitted the request. This is true for even the most frivolous leave requests. Indeed, following the Majority, as long as the “certification does not contain a statement from [your] physician saying that [you] would not miss any work,” the employer who denies a leave request is at risk of an interference claim. For lawyers seeking attorneys’ fees under the FMLA, this message will sound loud and clear.

So how do you avoid those attorneys’ fees-seeking plaintiffs’ lawyers?

  1. You don’t need a crystal ball. If an employee does not provide you with enough information to conclude that he or she needs FMLA leave, you don’t get penalized if you do not provide it.
  2. You don’t need to provide FMLA leave for non-serious health conditions. While employees with health conditions may seek FMLA leave; only those with serious health conditions can get leave.
  3. Don’t accept incomplete or insufficient FMLA certifications. A certification is “incomplete” if the “employer receives a certification, but one or more of the applicable entries have not been completed.” A certification is “insufficient” if the “employer receives a complete certification, but the information provided is vague, ambiguous, or non- responsive.” If you determine that a certification is either incomplete or insufficient, “provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.” If the issue is not corrected in seven days, you can deny the requested leave on the basis of an inadequate certification.

For more on FMLA certifications, check this out.

“Doing What’s Right – Not Just What’s Legal”
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