When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment.

However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the "negative certification" may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.

The Facts

Deborah Branham worked for The Dickson Herald, owned by Gannett. On November 7, 2006, Branham called her supervisor and advised that she would not be in because her son was ill. The next day, she sent an e-mail to her supervisor, Tracy Buhler, stating that her son was still sick and that she would again be absent. On November 9 and 10, she left voice messages for Buhler stating that she was sick and would be absent.

The following Monday, Branham's husband left a message for Buhler stating that Branham was still sick and that he was taking her to the doctor. Branham was examined by Dr. Singer, who found her exam to be "normal" and expected her to return to full work duty the following day, November 14. Branham called Buhler later that day and told her that the doctor had released her to come to work the following day. She also told Buhler that she still was not feeling well, and would need to be absent to attend other doctors' appointments during November and December. Buhler asked her to come into the office to fill out a short-term disability form and "see if she qualified for anything."

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Written by Bill Porkony