August/September 2006 FMLA News

• Employee Could Not Recover FMLA Damages for Injuries Sustained on Noncomparable Job After Returning From Medical Leave


• Employer Was Not Entitled to Summary Judgment on FMLA Claims Based on Defense Sales Rep Was Not an "Eligible Employee"


• Prorating Bonus for Time Spent on FMLA Leave Did Not Violate FMLA Rights


• County Violated Employee's FMLA Rights


• Employee Given Proper Notice of Start and End Dates of FMLA Leave


• Medical Certification Policy Violated FMLA Regulations

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Employee Could Not Recover FMLA Damages for Injuries Sustained on Noncomparable Job After Returning From Medical Leave (8/24/06) - US Dist Ct., E.D.Mich.
Ray Bordeau, was employed by Saginaw Control and Engineering Inc., as a purchasing manager since 1975. In January 2003, he requested both medical and family leave from his employer pursuant to the Family and Medical Leave Act ("FMLA") to provide care to his elderly mother with a serious health condition, and because of his own serious health condition. His request for leave to care for both his mother and himself subsequently was approved, and he was authorized to take leave from January 13, 2003 until April 6, 2003.

After going on leave, Bordeau noticed that Saginaw had begun advertising for his purchasing manager position. When Bordeau returned to work on the appointed date, he was given a manual labor job on the plant floor and not his previous job as a purchasing manager or, for that matter, not even in the purchasing department at all. While performing his labor job, Bordeau sustained a disabling back injury and has not been able to return to work since June 7, 2004, the date of the injury. Bordeau's employment was terminated on June 30, 2004.

Bordeau subsequently brought suit under the FMLA, seeking compensatory damages and equitable relief. In denying Saginaw's motion for summary judgment, the district court held that Bordeau's damages for loss of income or earning capacity because of his back injury were not allowable as compensatory damages under the FMLA. However, he might be entitled to equitable relief for the claimed FMLA violation, which could include either front pay or back pay.

Bordeau v. Saginaw Control & Engineering, Inc.

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Employer Was Not Entitled to Summary Judgment on FMLA Claims Based on Defense Sales Rep Was Not an "Eligible Employee" (8/10/06) - US Dist Ct., N.D.Iowa
In February of 2005, the U.S. Surgeon General issued an Advisory on Alcohol Use in Pregnancy to raise public awareness about this important health concern. Although the Surgeon General's Advisory primarily is concerned with alcohol exposure and birth defects, this controversy, which involves, in part, a former employee's allegations of pregnancy and sex discrimination against a distributor/wholesaler of alcoholic beverages presents an ironic twist on the Surgeon General's warning against the combination of pregnancy and alcohol, presumably, however, not precisely in the way the Surgeon General envisioned.

More specifically, the plaintiff asserted her former employer violated the Family and Medical Leave Act ("FMLA") by failing to restore her to her position after she took leave, due to complications with her pregnancy, and by discharging her in retaliation for taking leave. Additionally, the plaintiff asserted allegations of sex and pregnancy discrimination against her employer under Title VII, averring she was discharged in retaliation for complaining about sexual harassment and, or alternatively, for being pregnant.

The defendant moved for summary judgment invoking, among other bases, the affirmative defense that the sales representative was not an "eligible employee" because it did not employ 50 or more persons within 75 miles of her worksite.

The district court denied the defendant's motions, holding that: (1) A determinative issue of fact existed as to whether the employee's "worksite" was the Des Moines office where her supervisor worked, she maintained a mailbox, and she attended training and sales meetings in addition to orientation but which traveled to approximately less than once a month, or the Sioux City branch office, which she utilized approximately once per week; (2) fact issues existed as to whether the employee's exercise of her FMLA rights was the true reason she was not restored to her position or placed in an equivalent position and whether her position was selected for elimination due to the company's dissatisfaction with that exercise; (3) fact issues existed as to the causal connection between the employee's FMLA leave and her termination; (4) the employer's proffered reason for termination was legitimate and nondiscriminatory; (5) the employee established a fact issue as to whether that reason was a pretext for FMLA retaliation; (6) fact issues existed as to whether the employee established a causal connection between her complaints of her supervisor's sexual harassment and her firing nearly one year later, and whether the employer's proffered reason for her termination was pretextual; and (7) the employer was not entitled to summary judgment on the pregnancy discrimination claims.

Podkovich v. Glazer's Distributors of Iowa, Inc.

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Prorating Bonus for Time Spent on FMLA Leave Did Not Violate FMLA Rights (8/24/06) - 3rd Cir.
This appeal by Robert Sommer, a former employee of The Vanguard Group, Inc., presented a question of first impression regarding the construction of the Family and Medical Leave Act ("FMLA"), and the corresponding Department of Labor ("DOL") regulations. The 3rd Circuit was required to decide whether Vanguard illegally interfered with Sommer's FMLA rights when, upon his return from approximately eight weeks of short-term disability FMLA leave, it did not award him a full annual bonus payment under its Partnership Plan, but instead awarded him a payment prorated on the basis of the time he was absent.

Central to the question was a determination of what the bonus program rewards: employee production or the absence of an occurrence. If it rewards employee production, then proration for FMLA absences is generally allowed; if it rewards the absence of an occurrence (like a safety or perfect attendance bonus), then proration is not allowed.

In a summary judgment, the District Court determined that the Vanguard Partnership Plan is a production bonus and that the company had not unlawfully interfered with Sommer's FMLA rights by prorating his bonus. On appeal, the 3rd Circuit agreed and affirmed:

The FMLA grants an "eligible employee" the right to 12 work-weeks of leave over any 12-month period because of, among other things, "a serious health condition that makes the employee unable to perform the functions" of the employee's position. After a period of qualified leave, an employee is entitled to reinstatement to his former position or an equivalent one with "equivalent employment benefits, pay and other terms and conditions of employment." Moreover, the taking of FMLA leave, "shall not result in the loss of any employment benefit accrued prior to the date on which leave commenced." This right is limited, however, by the proviso that the restored employee shall not be entitled to "the accrual of any seniority or employment benefits during any period of leave, or any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave."

To protect these rights, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" in the FMLA. Such a claim is typically referred to as an "interference" claim, and is acknowledged to "set floors for employer conduct."

To assert an interference claim, "the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them."

Addressing unlawful FMLA interference, the DOL has stated that it includes "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." As for company bonus programs-and, more specifically, the distinction between absence of occurrence bonuses (e.g., safety and perfect attendance bonuses) and production bonuses-the DOL has explained:

Many employers pay bonuses in different forms to employees for job-related performance such as for perfect attendance, safety (absence of injuries or accidents on the job) and exceeding production goals. Bonuses for perfect attendance and safety do not require performance by the employee but rather contemplate the absence of occurrences. To the extent an employee who takes FMLA leave had met all the requirements for either or both of these bonuses before FMLA leave began, the employee is entitled to continue this entitlement upon return from FMLA leave, that is, the employee may not be disqualified for the bonuses for the taking of FMLA leave. A monthly production bonus, on the other hand does require performance by the employee. If the employee is on FMLA leave during any part of the period for which the bonus is computed, the employee is entitled to the same consideration for the bonus as other employees on paid or unpaid leave (as appropriate).

Although the regulations do not speak specifically to the proration of bonuses, the DOL has issued several opinion letters detailing how companies should compute the bonuses of those employees who take FMLA leave.

If a bonus is calculated based on hours worked or yearly or monthly earnings, the FMLA leave taker would naturally receive a lesser amount. Conversely, any methodology for calculating bonuses that are not based on worktime or accrued earnings cannot be reduced at all for FMLA leave takers who qualified for the bonus before they started FMLA leave and return to work and continue an otherwise perfect record for the remainder of the bonus period.

The DOL revisited this question several years later, again stating:
Under the FMLA, while an employee is not automatically entitled to accrue seniority or benefits during unpaid FMLA leave, an employer cannot use unpaid FMLA leave as a negative factor in employment actions. For example, in the case of a monthly "perfect" attendance bonus that tracks absences rather than performance, an employee who had not missed any time before taking unpaid FMLA leave would continue to be eligible for the bonus upon returning from FMLA leave. Where the amount of the bonus is calculated from hours worked, [however] the FMLA leave taker would naturally receive a lesser amount than an employee who had not been on leave.

The precept that we derive from the regulations and DOL opinion letters is that although an employer may not reduce an absence of occurrence bonus paid to an FMLA leave taker if the employee was otherwise qualified but-for the taking of the FMLA leave, that employer may prorate any production bonuses to be paid to an FMLA leave taker by the amount of any lost production (be it hours or another quantifiable measure of productivity) caused by the FMLA leave. This rule is an appropriate application of the admonition that, while on FMLA leave, an employee is not entitled to the accrual of any right of employment, but is entitled to those rights of employment "to which the employee would have been entitled had the employee not taken the leave."
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We hold that the hours-based Vanguard Partnership Plan is a bonus program designed to reward employee production, which may be prorated to account for the hours not worked by those employees who take FMLA leave. Accordingly, Vanguard's proration of Sommer's Partnership Plan bonus for the time he spent on short-term disability FMLA leave did not interfere with his FMLA rights.

Sommer v. The Vanguard Group

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The 3rd Circuit Court of Appeals' jurisdiction includes Pennsylvania, New Jersey, Delaware and the Virgin Islands.

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County Violated Employee's FMLA Rights (8/7/06) - 11th Cir.
Ralph Cooper was employed by Fulton County, Georgia, for nearly twenty years, first for the Public Buildings Department, then for the Fulton County Superior Court, and finally, from January to August of 1998, the Fulton County State Court.

On June 22, 1998, Cooper went to the hospital complaining of chest pains. He did not report for work that day, and for several days thereafter. On July 6, 1998, Court Administrator Robert E. Cochran had a letter hand-delivered to Cooper, advising that County policy required an original signed doctor's excuse for each day of his continuous absence. Cochran wrote that if Cooper did not return to work or provide the required doctor's excuse by July 8, 1998, he would declare Cooper's position abandoned for failure to comply with County policies. If Cooper complied, he would be placed on "twelve weeks leave for family purposes involving your serious illness," effective June 22, 1998. On July 8, 1998, Cooper provided certificates from a medical clinic which accounted for his absences and stated that he could return to work on July 13, 1998. Cochran was satisfied, and did not request further documentation.

On July 13, 1998, Cooper reported to work. However, approximately two hours into the work day, Cooper told supervisor Laura Miller that he was too ill to work. Cooper's brother came to pick him up. Later that morning, Miller left a phone message for Cooper requesting that he provide a doctor's excuse for his early departure that day, and for any absence thereafter.

On July 14, 1998, Cooper faxed Cochran a letter requesting family leave due to blurred vision, extreme headaches and "passing out." Miller again called Cooper to advise him of the need for a written medical excuse. Cooper did not respond.

On August 4, 1998, Cochran had another letter hand delivered to Cooper, instructing him to provide medical certification for his absence by August 10, 1998. Cooper obtained a letter from his doctor dated August 7, 1998, but did not immediately deliver the letter to Cochran. By letter dated August 10, 1998, Cochran notified Cooper that he was terminated effective August 12, 1998. The next day, Cooper faxed and mailed his doctor's letter to Cochran.

Cooper subsequently brought suit, alleging the County had violated his FMLA rights. The District Court granted judgment for Cooper. On appeal, the 11th Circuit affirmed:

The Family and Medical Leave Act ("FMLA") entitles eligible employees to take up to twelve (12) workweeks of leave during any twelve (12) month period because of "a serious health condition." Implementing regulations require employers to furnish employees with written guidance about their rights and obligations under the statute, as well as written guidance about the employer's specific policies relative to FMLA leave.

Employers may require that employees furnish medical certification to verify eligibility for leave. Employers must provide notice of such a requirement, and of the anticipated consequences for failing to comply, every time an employee requests FMLA leave. This notice must be written unless the employee has, within the preceding six months, been given the required written notice regarding the FMLA and the employer's specific FMLA policies. Otherwise, subsequent oral notification is sufficient. When the leave is unforeseeable, employers must allow employees at least fifteen (15) calendar days to comply with a request for certification.

The County argues that its actions did not violate the FMLA for two reasons. First, the County argues that Cooper failed to notify the County that his July 13, 1998 absence was due to a potentially FMLA-qualifying reason. Second, the County argues that its oral request for certification on July 13, 1998 was sufficient under the FMLA, and that it therefore afforded Cooper more than fifteen days to comply.

Cooper's communications with his employer were sufficient to give notice that his July 13, 1998 leave was due to a potentially qualifying reason under the FMLA. Cooper advised his supervisor on July 13, 1998 that he was leaving work due to illness. By letter dated July 14, 1998, Cooper expressly requested family leave due to blurred vision, extreme headaches and passing out. Cooper was not required to mention the FMLA or expressly assert rights under the statute in order to invoke it.

Upon receiving Cooper's July 14, 1998 request for FMLA leave, the County was required to give Cooper written notice of its medical certification requirement, advise him of the consequences for failing to comply, and allow fifteen days to provide the certification.

The County's oral request for certification on July 13, 1998 was not sufficient because the County had not provided Cooper with written guidance on the FMLA or the County's medical certification requirement (and consequences for failure to comply) within the preceding six-month period.

The County argues that its July 6, 1998 letter to Cooper constituted adequate "written guidance" under the notice provisions of the FMLA and implementing regulations. This argument fails. First, the July 6, 1998 letter did not provide Cooper with any guidance on his rights or obligations under the FMLA. Second, the requirements outlined in the letter were themselves not in compliance with the FMLA, allowing Cooper only two days to provide medical certification. Although the letter made reference to compliance with County policies, the only written policy provided to Cooper within the preceding six months was the State Court's Guidelines on Tardiness and Absenteeism. The Guidelines did not provide guidance on rights and obligations under the FMLA, nor did they give notice that an employee may be terminated for failing to provide medical certification.

The County's August 4, 1998 letter only allowed Cooper six days to provide the required medical certification. Because this requirement was not in compliance with the FMLA, the County was not entitled to take action against Cooper for failing to comply within the time allowed.

Cooper v. Fulton County, Georgia

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The 11th Circuit Court of Appeals' jurisdiction includes Alabama, Georgia and Florida.

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Employee Given Proper Notice of Start and End Dates of FMLA Leave (7/20/06) - 8th Cir.
Mary Grosenick was a pharmaceutical sales representative for SmithKline Beecham Corporation ("Glaxo") from December 1992 until January 2002.

On July 30, 2001, Grosenick gave notice to Glaxo that her physician recommended that she have surgery on her knee. Grosenick forwarded the doctor's recommendation to Sandi Cerretti, a Glaxo employee designated to handle leave requests. On that same day, Cerretti sent Grosenick a form letter letting Grosenick know that she was eligible for protection under the Family and Medical Leave Act ("FMLA"). The FMLA letter stated that "the medical and/or family leave you have requested will be counted against your twelve-week entitlement under FMLA." The materials also stated that "should your leave of absence exceed twelve weeks within a rolling twelve month period, Company policy allows your manager to fill or eliminate your position." In an email to her supervisor, Grosenick confirmed that effective July 30, Grosenick was on medical leave. Although Grosenick's July 30 email said that she would begin leave immediately, Glaxo did not compute the beginning of the leave period until August 2, 2001.

On August 20, 2001, Grosenick again met with her doctor. It was at this time that Grosenick and her physician completed the necessary forms for her FMLA leave. The physician certified that Grosenick should not work until her knee surgery was completed.

Glaxo did not complete the actual written approval of Grosenick's medical leave until after her leave had begun. On August 30, 2001, Glaxo approved Grosenick's medical leave under the FMLA. In the approval of leave, the stated period for leave was given as August 20, 2001, through September 20, 2001.

On September 24, 2001, Glaxo granted a second request for medical leave that extended Grosenick's leave until October 10, 2001. On or around October 10, 2001, Grosenick began to argue with representatives of Glaxo about the proper start date for her leave. Using August 2, 2001 as the start date of Grosenick's FMLA leave, Glaxo determined that her twelve week period of protected leave was to end on October 24, 2001. Also on or about October 10, 2001, Grosenick sent Glaxo a medical update stating that she was unable to work. Grosenick told company representatives that her surgery was tentatively scheduled for November 20, 2001. There were phone calls and emails sent between Grosenick and representatives of Glaxo, but there was no definitive agreement as to Grosenick's start date for medical leave. Grosenick claims to have not received several communications from Glaxo that were attempts to notify her of the imminent end of her twelve weeks of FMLA leave time.

Grosenick returned to work on October 21, 2001 and worked through October 24, 2001. On that date, Glaxo listed Grosenick as a "displaced employee." This status did not terminate Grosenick's employment with Glaxo, but did leave Grosenick without an assigned position with the company. Under company policy, Grosenick was afforded thirty days to find a new position within the company. On October 26, 2001, Glaxo gave Grosenick notice that she could not unilaterally return to work without doctor's approval because her most recent medical update had said that she was unable to work. On October 27, 2001, Glaxo granted a third request for medical leave extending Grosenick's leave until December 10, 2001. However, this last grant of medical leave listed the start date of her leave time as August 2, 2001 whereas the two previous letters had referred to the start date as August 20, 2001. On October 30, 2001, Grosenick was notified via voicemail that her position with Glaxo had been filled. This did not mean that Grosenick's employment with Glaxo was terminated. Rather, it confirmed Grosenick's status as a "displaced employee."

On October 31, 2001, Grosenick met with her doctor. After that meeting, the doctor gave approval for Grosenick to return to work under certain restrictions. This approval came after the twelve-week protected period expired if the FMLA leave time began on August 2, 2001.

Grosenick claims that, in November 2001, a representative of Glaxo told her that because of her "displaced employee" status, Glaxo attempted to secure for Grosenick one of several open positions in the Twin Cities area. Grosenick applied to several of these positions through Glaxo's intranet, but received no response. In late January 2002, Glaxo terminated Grosenick's employment.

Grosenick filed suit arguing that she did not receive adequate notice of the dates of her medical leave. She argued that had she known her job would not have been protected, she would have returned to work before her job protection period expired on October 24, 2001. Grosenick also argued that her twelve-week protection period should have been extended because she allegedly worked while on leave. The district court rejected this last argument because Grosenick's work while on leave was not authorized. Therefore, the district court granted summary judgment for Glaxo.

On appeal, the 8th Circuit affirmed, holding that Glaxo did not violate the FMLA by failing to notify Grosenick of the start and end dates of her medical leave time:

The FMLA was designed to allow an employee twelve weeks of protected leave within a twelve-month period. The United States Supreme Court held that an employee cannot get more than twelve weeks of leave based solely on the employer's lack of notice. Ragsdale v. Wolverine World Wide, Inc. In Ragsdale, the employee took thirty weeks of leave. The employer did not approve FMLA protection until after the twelve-week protected period had expired. Nonetheless, the Ragsdale court found that the lack of notice during the FMLA protected period did not give a plaintiff a cause of action.

In this case, the employer granted FMLA approval much sooner than in Ragsdale. Further, there was considerable discussion between Grosenick and Glaxo about the proper end date of the leave. To argue now that Grosenick was unaware that the company thought there was an earlier start date than Grosenick did, ignores the record. Glaxo's mailings on the exact dates of leave certainly could have been clearer. However, the ambiguity and contradictions in the documents do not give rise to an FMLA claim. If the court in Ragsdale did not find a cause of action when the employer gave no notice, it follows that proper notice followed by confusion should not create a claim.

Moreover, the record indicates that Grosenick had notice of the start date of her leave when she began taking leave. On July 30, 2001, Grosenick sent a note to her supervisor confirming the beginning of her leave. Therefore, Grosenick knew that her twelve week period would begin on July 30, 2001, when she commenced her medical leave. While subsequent mailings may have confused the start date, it is disingenuous to argue that Grosenick did not originally have notice of the start of her FMLA period.

Grosenick v. SmithKline Beecham Corp.

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The 8th Circuit Court of Appeals' jurisdiction includes North Dakota, South
Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.

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Medical Certification Policy Violated FMLA Regulations (7/20/06) - 6th Cir.
Jackie Killian began working for Yorozu Automotive Tennessee, Inc. ("Yorozu") as a third-shift spot welder. Over the years, she accrued enough seniority to earn a place on the first shift. She was, according to Yorozu, a good employee, and her hourly wage was among the highest available in her locality. Killian required surgery, and she requested family medical leave for the period of November 29, 2001, through December 4, 2001. As was customary, she filed her request with Yorozu's company nurse, who passed it along to the human resources department for processing. In order to qualify for leave, Killian was required to submit a medical certification. Killian's doctor sent her certification via facsimile, and it stated that Killian could not return to work prior to December 10, 2001. Yorozu approved Killian's leave and scheduled her return-to-work date as December 10, 2001.

During surgery, Killian's doctor discovered that her condition was more serious than he had anticipated, and he required Killian to report for a follow-up appointment on December 11, 2001. Killian contacted Yorozu's company nurse on December 4, 2001, and requested a leave extension. The nurse reputedly told Killian, "That's fine. Get a statement and we'll extend the time." Although Killian believed that the nurse had approved her request, Yorozu claims that only the human resources department could grant such an extension. Killian, who believed that she had fifteen days to submit her certification, did not immediately call her doctor.

On December 10, 2001, Killian's supervisor contacted her and inquired about her absence. Killian informed him that the company nurse had extended her leave. The call left her unsettled, and she asked her doctor to provide a new certification to Yorozu as soon as possible. The doctor sent a new certification via facsimile on the same day. It stated that Killian would be unable to work before December 17, 2001. When Killian called the human resources department to ensure that it had received her doctor's notice, Killian's supervisor fired her.

Killian filed a complaint against Yorozu alleging that her termination violated the Family and Medical Leaved Act ("FMLA"). After a bench trial, the district court ruled in Killian's favor. On appeal, the 6th Circuit affirmed, holding that: (1) Killian provided Yorozu with adequate notice of her need for an extended period of leave; and (2) Yorozu's medical certification policy violated FMLA regulations:

The FMLA regulations clarify an employee's rights and responsibilities under the act. The regulations relevant to Killian's claim can be divided into two groups: those dealing with notice and those dealing with medical certification. We first turn our attention to notice. Whenever possible, an employee must give her employer sufficient notice of her intention to use family medical leave. The notice may be verbal, and it "need not expressly assert rights under the FMLA." Although an employer may require an employee to "comply with the employer's usual and customary notice and procedural requirements for requesting leave failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice." If an employee fails to give adequate notice, the employer may choose between two courses of action: it may waive the notice requirements or it may delay the employee's leave. The regulations also provide:


It may be necessary for an employee to take more leave than originally anticipated. Conversely, an employee may discover after beginning leave that the circumstances have changed and the amount of leave originally anticipated is no longer necessary. In both of these situations, the employer may require that the employee provide the employer reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable.

It is clear that Killian provided Yorozu with adequate notice of her need for an extended period of leave. She contacted the company nurse on December 4, 2001, six full days before the expiration of her original leave period. Under the regulations, she could have waited until December 8, 2001. Accordingly, we find that Yorozu was required to extend Killian's leave, unless she failed to provide adequate medical certification under the FMLA and accompanying regulations. Finally, even if Killian's notice had been late, Yorozu's only legal recourse would have been either to waive the notice requirement or to delay her leave. The statute and regulations do not permit an employer to terminate an employee merely for failure to provide timely notice.

Having determined that Killian provided Yorozu with sufficient notice, we turn now to the issue of medical certification. When leave is foreseeable, an employee must provide her employer with medical certification at least thirty days prior to her scheduled absence. "When this is not possible, the employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request ), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts." The regulations detail the consequences of an employee's failure to provide an appropriate medical certification. 29 C.F.R. § 825.311 provides the following:

(a) In the case of foreseeable leave, an employer may delay the taking of FMLA leave to an employee who fails to provide timely certification after being requested by the employer to furnish such certification (i.e., within 15 calendar days, if practicable), until the required certification is provided.
(b) When the need for leave is not foreseeable, or in the case of recertification, an employee must provide certification (or recertification) within the time frame requested by the employer (which must allow at least 15 days after the employer's request). If an employee fails to provide a medical certification within a reasonable time under the pertinent circumstances, the employer may delay the employee's continuation of FMLA leave. If the employee never produces the certification, the leave is not FMLA leave.

29 C.F.R. § 825.311 clearly and unequivocally required Yorozu to provide Killian with fifteen days from the date of its request to submit medical certification supporting her extension of leave. Yorozu requested the additional certification on December 4, 2001, and it terminated Killian six days later, on December 10, 2001. Its action was clearly a violation of the FMLA. Under 29 C.F.R. § 825.311, Killian had fifteen days to provide the certification, not six. We therefore find that Killian's medical certification, provided on December 4, 2001, was timely under the FMLA and that Yorozu's policy, to the extent that it conflicts with 29 C.F.R. § 825.305(b) and 29 C.F.R. § 825.311, is unlawful. Finally, even if Killian had failed to provide the certification in a timely fashion, Yorozu's remedy under the regulations was once again delayed leave, not termination.

Killian v. Yorozu Automotive

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The 6th Circuit Court of Appeals' jurisdiction includes Michigan, Ohio, Kentucky and Tennessee.

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