Employers can insist that employees provide medical certification from their health care providers, indicating that they’re really qualified for . That is, the certification attests that an employee suffers from a serious health condition that prevents performing the essential functions of his or her job.
If employers insist, employees have up to 15 days to submit their doctors’ certifications. If employees (or their doctors) miss that deadline, employers are free to deny leave. They can even fire someone if his or her absences exceed allowable limits under an policy.
But union contracts often allow employers to discharge employees only for “good and sufficient cause.” What happens if a union member is denied FMLA leave because the employer didn’t get the certification within the 15-day limit?
A federal court has ruled that the arbitrator can ignore the employer’s rights under the FMLA and rule that missing the deadline isn’t good and sufficient cause for termination.
Recent case: Michael Dimmick was a refinery operator who underwent back surgery several years ago. Sometimes he still suffered back pain related to his operation. The refinery had an attendance policy that required termination after a set number of unauthorized absences. It did not count FMLA time toward that total.
Dimmick asked for FMLA leave when his back problems flared up. The refinery told him to fill out a leave form and submit his doctor’s certification within 15 days. His doctor didn’t send in the form on time, and the refinery denied Dimmick’s requested FMLA leave. Then it terminated him for excessive absences.
Dimmick filed a union grievance, and an arbitrator concluded that the company had violated the collective bargaining agreement because it didn’t have “good and sufficient cause” to fire Dimmick. The arbitrator said that getting the form in on time was beyond Dimmick’s control.
The refinery appealed, arguing that by ignoring the FMLA’s certification process, the arbitrator was expanding beyond what the legislature intended and was taking away an important right.
The court disagreed. It said the arbitrator could independently decide whether or not getting the form in was grounds for discharge under the contract, even if it clearly would have been justified in a nonunion environment. (Houston Refining v. United Steel, et al., No. H-07-2560, SD TX, 2008)