IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT _______________________________________

NO. 04-4080

_______________________________________

ELECTROLUX HOME PRODUCTS, INC.,

Plaintiff-Appellant,

v.

THE UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ET AL.

Defendant-Appellees.

_______________________________________

On Appeal from the United States District Court for the Northern District of Iowa

Central Division _______________________________________

BRIEF OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT

AND IN SUPPORT OF REVERSAL _______________________________________

Ann Elizabeth Reesman *Laura Anne Giantris McGuiness Norris & Williams, LLP 1015 Fifteenth St., N.W. Suite 1200 Washington, DC 20005 (202) 789-8600

*Admitted only in Maryland; practice January 28, 2005 supervised by Partners of the Firm

CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and 29(c), Amicus Curiae Equal

Employment Advisory Council discloses the following:

1) The Equal Employment Advisory Council has no parent corporations.

2) No publicly held company owns 10% or more stock in the Equal

Employment Advisory Council.

Ann Elizabeth Reesman Laura Anne Giantris McGuiness Norris & Williams, LLP 1015 15th Street, NW Suite 1200 Washington, DC 20005 (202) 789-8600

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................iii INTEREST OF THE AMICUS CURIAE.....................................................................1 STATEMENT OF THE CASE....................................................................................3 SUMMARY OF ARGUMENT ..................................................................................6 ARGUMENT ...............................................................................................................8

I. THE FMLA AND IMPLEMENTING REGULATIONS ENSURE THAT AN EMPLOYER CAN RELY ON A “NEGATIVE” MEDICAL CERTIFICATION TO DENY FMLA LEAVE...................8

A. Both The FMLA And Its Implementing Regulations Allow An

Employer To Demand Medical Certification Supporting An Employee’s Request For FMLA Leave ........................................8

B. Once An Employee Provides A Medical Certification That Says

The Employee Is Not Eligible For FMLA Leave, The Employer Is Not Required To Give The Employee Additional Time To Shop For Another Medical Opinion .............................................11

C. An Employer Is Required To Give Notice Of – And The

Opportunity To “Cure” – Only Medical Certifications That Are Incomplete ....................................................................................14

D. The FMLA Does Not Give Employees The Right To A Second

Medical Opinion ...........................................................................15

E. Coverage Under The FMLA Cannot Be “Presumed” ..................18 II. BECAUSE MEDICAL CERTIFICATIONS WERE DESIGNED TO

ALLEVIATE EMPLOYER CONCERNS ABOUT THE EFFECTS OF FMLA LEAVE, EMPLOYERS SHOULD BE PERMITTED TO TAKE THEM AT FACE VALUE..........................................................21

A. FMLA Leave Poses Significant Challenges For Employers ........21

B. The FMLA Medical Certification Requirement Was Included As A Means of Lessening The Burden On Affected Employers .22

C. To Effectuate Congress’ Intent, The Law Must Not Be

Construed In Ways That Facilitate “Doctor Shopping” And Abuse Of Leave ............................................................................23

CONCLUSION............................................................................................................27 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES FEDERAL CASES Boyd v. State Farm Insurance Companies, 158 F.3d 326 (5th Cir. 1998) ..............13 Brungart v. Bell South Telecommunications Inc., 231 F.3d 791 (11th Cir 2000), cert. denied, 532 U.S. 1037 (2001) ............ 19, 20 Collins v. Merck-Medco RX Servs., L.L.C., 7 Wage & Hour Cas.2d (BNA) 1134,

2001 WL 1142794 (N.D. Tex. 2001) ...................................................................13 Dillon v. Carlton, 977 F. Supp. 1155 (M.D. Fla. 1997) ..........................................13 Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000) ......................19 Hoffman v. Professional Med Team, Inc., 10 Wage & Hour Cas.2d (BNA) 289, 2005 WL 27136 (6th Cir. 2005) ...........................................................................3 Moreau v. Air France, 356 F.3d 942 (9th Cir. 2004) ................................................3 Niese v. General Electric Co., 6 Wage & Hour Cas.2d (BNA) 846, 2000 WL

1617774 (S.D. Ind. 2000) .....................................................................................13 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) ..................... 3, 10, 20 Stoops v. One Call Communications, Inc., 141 F.3d 309 (7th Cir. 1998)........ 17, 18 Urban v. Dolgencorp of Texas, Inc., 393 F.3d 572 (5th Cir. 2004) ................... 3, 25 Woodford v. Community Action of Greene County, Inc., 268 F.3d 51 (2d Cir. 2001) .................................................................................20 FEDERAL STATUTES Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.............................. passim 29 U.S.C. § 2601(b) ..............................................................................................9 29 U.S.C. § 2611(2)(A) ........................................................................................8

iii

29 U.S.C. § 2611(2)(B).........................................................................................9 29 U.S.C. § 2612(a)(1)..........................................................................................9 29 U.S.C. § 2612(a)(1)(D) ....................................................................................9 29 U.S.C. § 2612(b)(1) .........................................................................................9 29 U.S.C. § 2613(a) ....................................................................................... 6, 10 29 U.S.C. § 2613(c)(1)........................................................................................15 29 U.S.C. § 2613(d)(1) .......................................................................................16 29 U.S.C. § 2613(d)(2) .......................................................................................16 29 U.S.C. § 2654.................................................................................................10 FEDERAL REGULATIONS 29 C.F.R. Part 825......................................................................................................6 29 C.F.R. § 825.110(d) .......................................................................................19 29 C.F.R. § 825.305(a) .................................................................................. 6, 10 29 C.F.R. § 825.305(b) .......................................................................................11 29 C.F.R. § 825.305(c) .......................................................................................23 29 C.F.R. § 825.305(d) .......................................................................... 11, 14, 15 29 C.F.R. § 825.306............................................................................................11 29 C.F.R. § 825.306(a) .......................................................................................11 29 C.F.R. § 825.306(b) .........................................................................................6 29 C.F.R. § 825.311(b) .......................................................................................11

iv

29 C.F.R. Part 825, app. B ..................................................................................11 LEGISLATIVE HISTORY H.R. Rep. No. 102-135, pt. 1 (1991) .......................................................................22 H.R. Rep. No. 103-8, pt. 1 (1993)............................................................................23 S. Rep. No. 102-68 (1991) .......................................................................................23 S. Rep. No. 103-3 (1993) .........................................................................................23 OTHER AUTHORITIES Mary Elizabeth Burke, SHRM/Research: Family and Medical Leave Act (Apr. 2003)................................................................................................... 21, 22 Op. Admin. Wage & Hour Div., ESA (Dep’t of Labor Aug. 6, 2002) ...................20

v

The Equal Employment Advisory Council (EEAC) respectfully submits this

brief as amicus curiae contingent upon the granting of the accompanying motion

for leave. The brief urges this Court to reverse the decision below, and thus

supports the position of Plaintiff-Appellant Electrolux Home Products, Inc.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC) is a nationwide

association of employers organized in 1976 to promote sound approaches to the

elimination of employment discrimination. Its membership now includes more

than 330 of the nation’s largest private sector companies, collectively providing

employment to more than 20 million people throughout the United States. EEAC’s

directors and officers include many of industry’s leading experts in the field of

equal employment opportunity. Their combined experience gives EEAC a unique

depth of understanding of the practical, as well as legal, considerations relevant to

the proper interpretation and application of equal employment policies and

requirements. EEAC’s members are firmly committed to the principles of

nondiscrimination and equal employment opportunity.

All of EEAC’s members are employers subject to the Family and Medical

Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., as well as other labor and

employment statutes and regulations. As employers, and as potential defendants in

FMLA actions, EEAC’s members have a direct and ongoing interest in the issues

presented in this appeal.

The FMLA entitles eligible employees to up to twelve workweeks a year of

FMLA leave for a qualifying reason. Employees may take FMLA leave in a block

or, if medically necessary, as a reduced work schedule or even intermittently. As a

result, employers subject to the FMLA face a daily struggle to manage the

challenges presented by the FMLA, attempting to ensure that employees who are

entitled to leave receive it while continuing to run a business staffed with enough

employees to get the work done.

Perhaps the most important tool the statute gives employers is the ability to

require a medical certification from the employee justifying the need for FMLA

leave based on a serious health condition. If the employer cannot rely on the plain

statements in the certification, however, the certification is meaningless. In this

case, the district court below ruled incorrectly that an employer may not rely on a

medical certification provided by the employee when the certification states that

FMLA leave is unnecessary. Rather, the court announced a new legal framework

that encourages “doctor shopping” by employees and undermines the efforts of

employers to manage employee attendance and potential abuse of leave. Reversal

of the decision below is, therefore, extremely important to every employer covered

by the FMLA in this Circuit.

2

Because of its interest in the application of the nation’s fair employment

laws, EEAC has filed over 535 briefs as amicus curiae in numerous cases before

the Supreme Court, the United States Courts of Appeals, and various state supreme

courts. As part of this amicus activity, EEAC has filed briefs in cases involving

the FMLA1 and other employment laws. Thus, EEAC has an interest in, and a

familiarity with, the issues and policy concerns involved in this case.

EEAC seeks to assist the Court by highlighting the impact its decision in this

case may have beyond the immediate concerns of the parties to the case.

Accordingly, this brief brings to the attention of the Court relevant matter that has

not already been brought to its attention by the parties. Because of its experience

in these matters, EEAC is well situated to brief the Court on the relevant concerns

of the business community and the significance of this case to employers.

STATEMENT OF THE CASE

Electrolux Home Products, Inc. (“Electrolux”) makes washers and dryers at

a production plant in Webster City, Iowa. Electrolux Home Prods., Inc. v. UAW of

America, 343 F. Supp.2d 747, 750 (N.D. Iowa 2004). The United Automobile,

1 E.g. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002); Moreau v. Air France, 356 F.3d 942 (9th Cir. 2004); Hoffman v. Professional Med Team, Inc., 10 Wage & Hour Cas. 2d (BNA) 289, 2005 WL 27136 (6th Cir. 2005); Urban v. Dolgencorp 393 F.3d 572 (5th Cir. 2004).

3

Aerospace and Agricultural Implement Workers of America (“UAW”) is the

collective bargaining representative. Id. According to the attendance policy

incorporated into the collective bargaining agreement (CBA), each worker receives

eight banked attendance “points.” Id. Workers lose one point for any use of

sickness and accident leave, unless the leave qualifies for leave under the Family

and Medical Leave Act (FMLA), whereupon they lose no points. Id. The

company also adds a half point for each 30 days of perfect attendance. Electrolux

Home Prods., Inc., F.M.C.S. No. 03-1030-01397-8 (Nov. 23, 2003), at 2.

Electrolux fired Deborah Cook on August 2, 2002 after she exhausted her

eight attendance points. Electrolux, 343 F. Supp.2d at 751. Cook’s final absence

occurred on July 31 when she left work early because her “stomach was hurting.”

Id. Cook returned to work the next day and visited her neighborhood clinic after

her shift ended. Id. The treating Physician’s Assistant at the clinic, Dawn Syferd-

Peterson, gave Cook a prescription but refused to certify her condition as

“incapacitating” or otherwise protected by the FMLA. Id. Electrolux contacted

Syferd-Peterson at Cook’s request and then on its own behest, and was told, as

Cook had been, that no certification would be issued. Electrolux Home Prods.,

Inc., F.M.C.S. No. 03-1030-01397-8 (Nov. 23, 2003), at 3-4. Electrolux then

terminated Cook’s employment. Id. at 4.

4

After her discharge, Cook went to a different clinic where nurse practitioner

Rochelle Guess completed a FMLA certification form saying that Cook had a

serious health condition, chronic gastritis, causing episodic incapacity.2

Electrolux, 343 F. Supp.2d at 751-52. However, she did not certify that Cook was

“incapacitated” on July 31. Id. at 752.

Cook grieved her termination under the CBA. Id. During the arbitration

hearing, Guess testified that Cook had not told her that she had earlier been

examined by another health care provider who refused to certify her absence as

FMLA-protected. Id. Guess also testified that she could not state under oath that

Cook had been incapacitated on July 31. Id.

Notwithstanding these facts, the arbitrator concluded that the company

violated the FMLA and ordered Electrolux to reinstate Cook with backpay.

Arbitrator’s Decision at 6-7. The arbitrator held that Electrolux should have given

Cook fifteen days to obtain a second medical certification that supported her

request for FMLA leave, that the form filled out by Nurse Guess was “close

enough” to qualify Cook for FMLA leave, and that the company did not have the

right to reject this second medical certification as “less credible” than the first. Id.

at 8-10.

2 Apparently Cook also went to see a physician at the first clinic, one who had certified several of her previous absences, but he too refused to certify her July 31 absence. Brief of the Appellant at 11.

5

Electrolux filed suit in federal district court to vacate the arbitration award

on the grounds that, among other things, the arbitrator’s ruling did not draw its

essence from the CBA and was in manifest disregard of the law. Electrolux, 343

F. Supp.2d at 749. The district court upheld the arbitrator’s award, and Electrolux

appealed.

SUMMARY OF ARGUMENT

An employer is entitled to rely on a “negative” certification from an

employee’s own health care provider to deny leave under the Family and Medical

Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. Both the FMLA and its

implementing regulations, 29 C.F.R. Part 825, establish an employer’s right to

require an employee seeking FMLA leave to provide medical certification to

support that request. 29 U.S.C. § 2613(a); 29 C.F.R. § 825.305(a). As part of the

medical certification, the employer has the right to expect confirmation that the

employee has a serious health condition, and, in the case of a request for

intermittent leave, that such leave is medically necessary, as well as the likely

duration and frequency of episodes of incapacity. 29 C.F.R. § 825.306(b). Where

the physician’s certification reflects that the requested FMLA leave is not

necessary, the employer may rely on that document to deny the leave.

FMLA leave poses significant burdens on employers, multiplied over and

over by the number of employees who are taking such leave. Not only must

6

employers fill the void these employees leave behind, and continue to run the

business, but they also must shoulder the administrative burden of tracking the

leave and guard against the possibility of abuse of the leave entitlement. Congress

included the FMLA’s medical certification requirement in order to ease the

burdens on covered employers. To effectuate that intent, employers must be

permitted to take the medical certifications they receive at face value. If a medical

certification states that an employee does not need FMLA leave, the employer

must be permitted to rely on that certification to deny the leave and should not be

expected to try to read between the lines to root out what the doctor might really

have meant.

In this case, both the arbitrator and the district court held the contrary. The

arbitrator concluded incorrectly that the FMLA gives employees the right to a

second medical opinion and that Electrolux should have given Cook up to fifteen

days to obtain a second, more-favorable medical opinion after receiving her initial

negative medical certification. The district court further held sua sponte that the

law required Electrolux to affirmatively notify Cook that her initial, negative

certification was “deficient” and allow her the opportunity to “cure” the deficiency.

Finally, the district court concluded that an employee’s coverage under the FMLA

could be presumed when an employer does not follow the FMLA’s implementing

regulations – even if the evidence indicates that no such coverage exists.

7

Both rulings grossly misstate the law, however, as it applies to this case.

Moreover, these rulings lead to absurd results that Congress sought to avoid when

drafting the FMLA. Specifically, the rulings below eviscerate carefully crafted

protections in the law designed to ensure that only workers who suffer from a

serious health condition enjoy protection under the law, as well as protect

employers from potential abuse of FMLA leave by unscrupulous workers. The

rulings allow (even encourage) “doctor shopping” notwithstanding the fact that the

employee’s own health care provider already refused to certify leave as FMLA-

eligible. Moreover, the rulings place the employer in the untenable position of

having to prompt workers to seek out conflicting medical opinions.

ARGUMENT

I. THE FMLA AND IMPLEMENTING REGULATIONS ENSURE THAT AN EMPLOYER CAN RELY ON A “NEGATIVE” MEDICAL CERTIFICATION TO DENY FMLA LEAVE

A. Both The FMLA And Its Implementing Regulations Allow

An Employer To Demand Medical Certification Supporting An Employee’s Request For FMLA Leave

The federal Family and Medical Leave Act (FMLA) permits “eligible”

employees3 of covered employers to take a maximum of twelve weeks of unpaid

3 The FMLA defines “eligible employee” as an employee who has been employed “for at least 12 months by the employer with respect to whom leave is requested … and … for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). Excluded from the definition of “eligible employee” is “any employee of an employer who is employed at a

8

leave of absence in a twelve-month period due to, among other things, the

employee’s own serious health condition, 29 U.S.C. § 2612(a)(1). Although the

law establishes an entitlement, Congress drafted it carefully “to balance the

demands of the workplace with the needs of families … in a manner that

accommodates the legitimate interests of employers ….” 29 U.S.C. § 2601(b).

Accordingly, the statutory language establishes stringent parameters. An

eligible employee must show both that (1) he or she has a serious health condition;

and (2) that the serious health condition “makes the employee unable to perform

the functions of the position” in order to qualify for FMLA leave due to a serious

health condition. 29 U.S.C. § 2612(a)(1)(D). An employee who seeks FMLA

leave on an intermittent basis rather than taking the entire twelve-week entitlement

at one time faces an additional hurdle: intermittent leave is available only if it is

“medically necessary.” 29 U.S.C. § 2612(b)(1).4

Recognizing the staffing difficulties that the FMLA would cause for covered

employers, Congress specifically allowed employers to require that an employee

worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” 29 U.S.C. § 2611(2)(B). 4 Intermittent leave is not available at all for FMLA leave due to the birth or adoption of a child or placement of a foster care child, unless the employer agrees. 29 U.S.C. § 2612(b)(1).

9

provide a medical certification that supports the request from the appropriate health

care provider if he or she seeks FMLA leave due to a serious health condition.

29 U.S.C. § 2613(a) states that “[a]n employer may require that a request for leave

[for a serious health condition of the employee or his or her son, daughter, spouse

or parent] be supported by a certification issued by the health care provider . . . .”

Underscoring that requirement, Congress expressly provided that “[t]he employee

shall provide, in a timely manner, a copy of such certification to the employer.” Id.

Under the authority granted by Congress,5 the Secretary of Labor issued

regulations to carry out the FMLA, codified at 29 C.F.R. Part 825.6 Those

regulations echo the statutory requirement that an employee seeking leave for a

serious health condition produce a medical certification upon request. 29 C.F.R.

§ 825.305(a). They further prescribe minimum requirements for the content of the

medical certification, including (1) that the patient has a “serious health condition”

as defined in the regulations, (2) the date of onset, and probable duration, (3)

5 29 U.S.C. § 2654. 6 Some of the regulations actually exceed the Department of Labor’s authority under the statute. See, e.g., Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) (striking down regulation imposing severe penalty on employers for failing to meet regulatory requirement to designate leave in advance). In contrast, while the regulations on medical certification certainly could be improved, in our view they are well within the agency’s authority prescribed by the statute.

10

whether the employee is incapacitated, and other information. 29 C.F.R.

§ 825.306.7

The regulations also state that an employer who requests medical

certification of the need for FMLA leave must give an employee fifteen calendar

days to respond to the request. 29 C.F.R. § 825.305(b). The employer also must

“advise an employee whenever the employer finds a certification incomplete, and

provide the employee a reasonable opportunity to cure any such deficiency.” 29

C.F.R. § 825.305(d).

According to the regulations, “[i]f the employee never produces the

certification, the leave is not FMLA leave.” 29 C.F.R. § 825.311(b).

B. Once An Employee Provides A Medical Certification That

Says The Employee Is Not Eligible for FMLA Leave, The Employer Is Not Required To Give The Employee Additional Time To Shop For Another Medical Opinion

Both the arbitrator and the district court concluded that Electrolux violated

the FMLA by not giving Cook sufficient time to find a health care provider who

7 The Department of Labor has produced an optional form for use by employees who need to provide medical certification, which “reflects certification requirements so as to permit the health care provider to furnish appropriate medical information within his or her knowledge.” 29 C.F.R. § 825.306(a). Form WH-380, reprinted in 29 C.F.R. Part 825, app. B, and available at http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf, sets out the certification requirements in a format that allows the treating physician to understand the requirements and provide the appropriate responses.

11

would certify her absence as FMLA-eligible. Electrolux, 343 F. Supp.2d at 760.

According to the arbitrator, Electrolux illegally fired Cook “one day after

[requesting medical] certification” without giving Cook “an opportunity to provide

the document.” Electrolux Home Prods., Inc., F.M.C.S. No. 03-1030-01397-8

(Nov. 23, 2003), at 9. Under FMLA’s regulations, the arbitrator reasoned,

Electrolux should have given Cook up to fifteen days to provide medical

documentation supporting her request for FMLA leave, even though she had

already provided medical certification to the contrary.

Both rulings, however, fundamentally misinterpret the law. As an initial

matter, Electrolux did not terminate Cook one day after requesting medical

certification. Rather, Electrolux terminated Cook one day after receiving medical

certification – albeit certification that disproved Cook’s need for FMLA leave.

Both the arbitrator and the district court appear to take the position that when a

health care provider’s opinion is that an employee does not qualify for FMLA

leave, that opinion is not a “medical certification” for the pursposes of the FMLA.

This, however, is not the law.

A medical certification that does not support the employee’s leave request

has the same effect as one that is nonexistent: the employer is within its rights to

deny the leave. In effect, a medical certification stating that the employee does not

need leave is a “negative certification,” establishing that the employee’s leave

12

request does not meet the requirements prescribed by the statute. Collins v. Merck-

Medco RX Servs., L.L.C., 7 Wage & Hour Cas.2d (BNA) 1134, 1136, 2001 WL

1142794, at *2-3 (N.D. Tex. 2001). See also Niese v. General Elec. Co., 6 Wage

& Hour Cas.2d (BNA) 846, 854, 2000 WL 1617774, at *10 (S.D. Ind. 2000)

(holding that “[a]n employer may determine whether an employee’s requested

leave is FMLA-qualifying based on certification by the employee’s physician that

the employee was not qualified for such leave”). Just as a physician’s statement

that the employee does need leave constitutes sufficient certification under the

FMLA, so too should the physician’s statement that the employee does not need

leave establish the opposite.

Therefore, once Cook submitted her medical certification, Electrolux was

well within its rights to act upon it. Electrolux did not then have to give Cook

additional time to provide another medical certification that would contradict the

first. Boyd v. State Farm Ins. Cos., 158 F.3d 326, 332 (5th Cir. 1998) (holding as a

matter of law that when an employee submits medical information in response to

an employer’s request for medical certification that fails to qualify employee for

FMLA leave, the employer is not required to wait fifteen days before taking action

. . . and may terminate him); Dillon v. Carlton, 977 F. Supp. 1155, 1159 (M.D. Fla.

1997) (employer had no reason to doubt validity of physician’s medical

certification that did not indicate serious health condition and was not required to

13

request that employee obtain second medical opinion before denying employee’s

request for leave).

C. An Employer Is Required To Give Notice Of – And The Opportunity To “Cure” – Only Medical Certifications That Are Incomplete

Nor was Electrolux required to give Cook notice – and the opportunity to

cure – the alleged “deficiency” in the medical certification she provided, as the

district court concluded. Electrolux, 343 F. Supp.2d at 760. The district court

appears to have taken the flawed view that because the initial medical certification

Cook provided Electrolux did not support her eligibility for FMLA leave (and, in

fact established just the opposite), the certification was necessarily “deficient.”

Therefore, the district court said, Electrolux was required to notify Cook of the

“deficiency” and give her time to “cure” it. Id.

Here again, however, the district court misstates the law. The FMLA’s

implementing regulations state that an employer must notify an employee when a

medical certification is “incomplete” – not “deficient” in some other respect. 29

C.F.R. § 825.305(d). Put another way, the regulations say that a “deficient”

certification is one that is “incomplete.” If, and only if, an employee submits an

incomplete certification, the FMLA regulations require an employer to give the

employee a reasonable opportunity to cure the “deficiency,” (i.e., the opportunity

14

to submit a medical certification form that contains all information necessary to

determine an employee’s eligibility for FMLA leave). 29 C.F.R. § 825.305(d).

In this case, the medical certification Cook provided Electrolux was not

incomplete. In fact, the health care provider was clear and unequivocal – Cook

was not incapacitated on July 31, a prerequisite for FMLA-qualifying leave. While

this negative certification may have had the effect of disproving Cook’s need for

FMLA leave, the certification was in no way “deficient,” as defined by the

regulations. Accordingly, Electrolux was not required either to give notice or the

opportunity to “cure.”

D. The FMLA Does Not Give Employees The Right To A

Second Medical Opinion The arbitrator further held, and the district court tacitly agreed, that the

FMLA gives employees the right to a second medical opinion. Thus, the arbitrator

reasoned, Electrolux should have considered the second medical certification

offered by Cook after her termination. Again, this is not the law.

The clear language of the FMLA affords the employer the right to obtain a

second medical opinion – not the employee. The statute says that “[i]n any case in

which the employer has reason to doubt the validity of the certification . . . the

employer may require . . . that the eligible employee obtain the opinion of a second

health care provider. . . .” 29 U.S.C. § 2613(c)(1) (emphasis added). If the second

15

opinion differs from the first, the statute says that “the employer may require . . .

that the employee obtain the opinion of a third health care provider designated or

approved jointly by the employer and the employee.” 29 U.S.C. § 2613(d)(1)

(emphasis added). The opinion of the third health care provider is binding on both

parties. 29 U.S.C. § 2613(d)(2).

Thus, Congress was clear as to who may request a second (or third) medical

opinion – expressly affording that right to employers. There is no provision in the

statute – or the regulations – that gives a similar right to employees. Moreover,

such a provision is unnecessary. After all, the FMLA gives employees the

opportunity to provide the initial (and controlling, unless challenged) medical

certification, and Congress probably assumed that most employees would not offer

a self-defeating medical certification, as Cook did here. The carefully balanced

process for confirming the validity of an employee’s medical certification,

including the tie-breaking third opinion, is designed to offer employers some

protection from abuse by unscrupulous employees who would exploit this initial

advantage. Interpreting the FMLA to give employees the right to a second

opinion, as the arbitrator did in this case, would not only render meaningless the

steps outlined in the FMLA for confirming the validity of an employee’s medical

certification, but will effectively tie an employers’ hands with respect to being able

to curb potential abuse.

16

In holding that the arbitrator’s ruling on this point was not in manifest

disregard of the law, the district court relied exclusively on the decision of the

Seventh Circuit Court of Appeals in Stoops v. One Call Communications, Inc., 141

F.3d 309 (7th Cir. 1998). Like Cook, the employee in Stoops gave his employer a

medical certification that said he was not “incapacitated” and, therefore, not

eligible for FMLA leave. Id. at 311. After accumulating more absences than were

allowed under a no-fault attendance policy, Stoops argued that the FMLA required

his employer to request a second medical opinion before terminating him. Id. The

Seventh Circuit disagreed, holding that “[w]here an employer properly requests a

physician’s certification under the FMLA [that] indicates the employee is not

entitled to FMLA leave, the employer does not violate the FMLA by relying upon

that certification . . . .” Id. at 313.

Criticizing Stoops for allowing his employer to rely on a medical

certification that he apparently felt was wrong, the Seventh Circuit also said in

dicta, however, that nothing in the FMLA “limits the employee’s ability to produce

a medical opinion that contradicts a prior negative certification originally provided

by the employee.” Id. Stoops should have provided such an opinion, the court

said, “in time to save his job.” Id. at 314. Because this language is dicta, it is not

binding on this or any other court, including the Seventh Circuit. Nor is it clear

that this language is even applicable to this case (and arguably it is not).

17

Assuming that it is, however, Electrolux still should have prevailed because

Cook, like Stoops, also failed to provide her employer with a second medical

opinion in time to save her job. Cook knew that her chosen health care provider

would not certify her leave on July 31 as FMLA-eligible, but asked Electrolux to

rely upon it anyway. While Cook was the person “most able to determine that the

initial certification was ‘wrong,’” and had the “incentive” and “burden” to have it

corrected, she did not offer up a second opinion until after Electrolux had already

terminated her employment. Stoops, 141 F.3d at 313. Thus, the district court

should have concluded that Electrolux would prevail under this decision.

E. Coverage Under The FMLA Cannot Be “Presumed”

The district court also erred when it found that the arbitrator did not act in

manifest disregard of the law when it ruled that Cook’s second medical

certification was “close enough to qualify” her for FMLA. Electrolux, 343 F.

Supp.2d at 760. More specifically, the district court essentially concluded that an

employee’s coverage under the law could be presumed when an employer does not

follow the FMLA’s implementing regulations.8 Id.

The FMLA outlines specific criteria for coverage, which Cook failed to meet

in this case. The initial medical certification offered by Cook stated unequivocally

8 Of course, as discussed earlier in this brief, Electrolux was in compliance with the FMLA regulations when it terminated Cook.

18

that Cook’s leave was not FMLA-qualifying because she was not “incapacitated,”

which is a prerequisite to coverage. Even the second medical certification Cook

offered after her termination did not certify that she was incapacitated. Moreover,

the health care provider who supplied the second medical certification would not

testify under oath that Cook was incapacitated on the day in question. Thus, to

date, Cook has offered no evidence that she qualified for FMLA leave.

Even if Electrolux had violated the FMLA regulations, a court still may not

presume coverage. Indeed, three federal Circuit Courts of Appeal have struck

down a Department of Labor regulation that purported to presume FMLA coverage

when the employer failed to follow the letter of the regulations. 29 C.F.R.

§ 825.110(d) provides that an employee who lacks the FMLA’s minimum service

requirements, and therefore is ineligible for FMLA leave, nevertheless will be

“deemed eligible” if the employer fails to advise the employee of his or her

ineligibility within two business days. Refusing to presume coverage, the Seventh

Circuit in Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000),

criticized the agency for trying to “change the Act,” calling the regulation

“unauthorized” and “unreasonable.” Id. at 582-83.

Simlarly, the Eleventh Circuit in Brungart v. Bell South Telecommunications

Inc., 231 F.3d 791 (11th Cir. 2000), cert. denied, 532 U.S. 1037 (2001), said that

the Labor Department had “attempted to pry apart the clear words of the act in

19

order to create a gap into which it can wedge its policy preference.” Id. at 797.

The Second Circuit, although “sympathetic” to the agency, nevertheless was

“forced to agree” with the other circuits that the regulation was unenforceable.

Woodford v. Community Action of Greene County, Inc., 268 F.3d 51, 56-57 (2d

Cir. 2001). As a practical matter, the DOL has now stopped enforcing the

offending regulation. Op. Admin. Wage & Hour Div., ESA (Dep’t. of Labor Aug.

6, 2002).9 Significantly, the United States Supreme Court also has frowned upon

the use of FMLA notice requirements to expand the reach of the law. Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81 (2002) (overturning a FMLA regulation

providing that the FMLA clock does not begin to run unless the employer formally

notifies the employee that an absence is being counted against FMLA leave).

To allow an employee to secure protection under the FMLA by simply

alleging wrongdoing by an employer – even when the employee cannot establish

that she is covered under the law – would give unmanageably broad protection to

workers and impose serious financial and operational hardships on employers.

Adjudicators have an obligation to dismiss unmeritorious complaints, particularly

those in which the complainant cannot even allege facts that establish his or her

coverage under the law.

9 available at http://www.dol.gov/esa/whd/opinion/fmla/FMLA_08_06_02.pdf.

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II. BECAUSE MEDICAL CERTIFICATIONS WERE DESIGNED TO ALLEVIATE EMPLOYER CONCERNS ABOUT THE EFFECTS OF FMLA LEAVE, EMPLOYERS SHOULD BE PERMITTED TO TAKE THEM AT FACE VALUE

A. FMLA Leave Poses Significant Challenges For Employers

By its very nature, FMLA leave is problematic for employers. FMLA leave

presents several challenges, each multiplied by the number of employees who are

taking such leave. First is the ongoing problem of filling the void left by each

employee’s absence. According to a recent survey of company human resources

professionals by the Society for Human Resource Management (SHRM),

respondents said that 34% of their employees had taken FMLA leave for medical

reasons in the previous twelve months and an additional 17% had taken leave for

family reasons. Mary Elizabeth Burke, SHRM/Research: Family and Medical

Leave Act (Apr. 2003), at 5.10

For many employers, delaying the work the employee would have done

simply is not a viable option. Life goes on: stores still stay open, restaurants still

provide meals, newspapers still have deadlines, hospital patients are still ill, and

products still need to be designed, manufactured, marketed, sold, packaged, and

shipped. Accordingly, each time an employee takes leave, the employer must

somehow fill the vacancy to ensure that its goods or services remain available and

10 available at http://www.shrm.org/hrresources/surveys_published/2003%20FMLA%20Poll.pdf.

21

its customers and clients continue to be served. Frequently, the burden falls on co-

workers, who must work longer or more concentrated hours to get the job done.

Id. at 6 (concluding that the most common method of handling the workload

typically done by an employee on FMLA leave was by assigning it to other

employees).

On a practical level, there is also an ongoing problem involving the potential

for abuse. Some employees actively seek opportunities to take off work, hampered

only by the employer’s attendance and tardiness policies. The availability of

FMLA leave offers unscrupulous employees the opportunity to do an end run

around the employer’s attempts to control attendance. While not all employees

seek to “game” the system, some do, and that is a fact of life.

B. The FMLA Medical Certification Requirement Was Included As A Means Of Lessening The Burden On Affected Employers

Congress intended the medical certification requirement to alleviate some of

the burdens the FMLA would impose on covered employers. Indeed, in describing

an earlier version of the legislation that ultimately became the FMLA, the U.S.

House of Representatives Committee on Education and Labor described the bill’s

“extensive medical certification provisions” as one of the “employer

accommodations” made “[i]n response to concerns raised by employers.”

H.R. Rep. No. 102-135, pt. 1, at 37-38 (1991). The Senate Committee on Labor

22

and Human Resources similarly described the medical certification requirement as

“[a]nother provision designed to accommodate employer needs,” explaining that it

was “designed as a check against employee abuse of leave . . . .” S. Rep. No. 102-

68, at 47 (1991). Both Committees reiterated this point in their Reports on what

became the final bill. H.R. Rep. No. 103-8, pt. 1, at 39 (1993); S. Rep. No. 103-3,

at 25-26 (1993).

As Congress recognized, enforcement of the statutory requirement of a

medical certification is crucial for employers to manage the various problems

posed by the availability of FMLA leave. The requirement was designed as a way

to offer some degree of certainty that an employee seeking leave really needs it,

and to afford employers the ability to police and manage it.

C. To Effectuate Congress’ Intent, The Law Must Not Be Construed In Ways That Facilitate “Doctor Shopping” And Abuse Of Leave

If Congress’ promise of accommodating the legitimate interests of

employers is to be realized, employers must be able to rely on the medical

certification the employee’s own physician provides. As discussed earlier in this

brief, under the Department of Labor’s regulations, an employer may advise the

employee if it finds the medical certification incomplete, allowing the employee

time to cure the deficiency. 29 C.F.R. § 825.305(c). Where a health care provider

23

has said that leave is not FMLA-qualifying, however, the employer should have no

need and no duty to do so.

Having received from the employee a medical certification saying that the

employee does not need FMLA leave, the employer should be under no obligation

to second-guess that opinion. Expecting an employer to try to discern whether a

health care provider really meant what he said would undermine seriously the

degree of certainty that the medical certification requirement was intended to

provide.

The ruling of both the arbitrator and the district court in this case essentially

renders meaningless all of the provisions Congress built into the FMLA for the

purpose of protecting employers from abuse and creates a new legal framework

that both promotes and rewards “doctor shopping” by employees. Under these

rulings, a worker may submit multiple – even conflicting – medical certifications

to her employer until she successfully “establishes” eligibility for FMLA leave. At

the same time, the employer’s hands are tied – unable to take appropriate action

when an employee submits medical certification that disproves the employee’s

need for FMLA leave and forced instead to encourage the employee to seek out

other, conflicting medical opinions. In other words, employers subject to these

rulings are now placed in the untenable position of facilitating “doctor shopping”

by employees.

24

Moreover, under the flawed reasoning employed in the rulings below, with

every negative certification provided by the employee the employer would be

required to give the employee the opportunity to “cure” or seek out another

medical opinion supportive of the employee’s request for FMLA leave.

Conceivably, an employee could take this opportunity to drag out the process

indefinitely and avoid any consequences that might have resulted from the failure

to establish entitlement to FMLA-qualifying leave. Urban v. Dolgencorp of Texas,

Inc., 393 F.3d 572, 577 (5th Cir. 2004) (refusing to equate a non-existent medical

certification to an “incomplete” one under the FMLA, reasoning that “an employer

could never set a real deadline for the return of a medical certification” because

“whenever an employee failed to return a medical certification within the

appropriate time period, the employer would be required to notify the employee of

that fact and provide the employee with an opportunity to cure”).

Employers must be able to address attendance-related problems. The rulings

below seriously impede an employer’s ability to do this, however, and instead

obstruct employer efforts to run their businesses efficiently and effectively by

preventing them from taking legitimate steps to address attendance-related

problems. This is not what Congress intended, though, and the rulings, which

directly contradict the express language of both the statute and the regulations, will

25

likely lead to increased FMLA litigation and even greater financial and operational

burdens on employers.

As the questions posed in this case have been addressed by only a mere

handful of federal courts, these decisions, if allowed to stand, will likely be

followed in the future by other arbitrators and judges and lead to the same

untenable result in innumerable future cases. In short order, unsubstantiated claims

will congest the legal system, preventing deserving complainants from having their

day in court and harming those individuals the FMLA was created to protect.

Moreover, innocent employers will be force to expend considerable time and

resources to defend themselves against meritless claims, unless they want to pay to

settle such claims despite their utter lack of merit. For all of these reasons, the

court should not allow these rulings to stand.

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CONCLUSION

For the foregoing reasons, the amicus curiae Equal Employment Advisory

Council respectfully requests that the decision below be reversed.

Respectfully submitted,

Ann Elizabeth Reesman Laura Anne Giantris McGuiness Norris & Williams, LLP 1015 Fifteenth St., NW Suite 1200 Washington, DC 20005 (202) 789-8600

January 28, 2005

27

CERTIFICATE OF COMPLIANCE

I hereby certify that the Brief of the Equal Employment Advisory Council

As Amicus Curiae In Support of Plaintiff-Appellant and In Support of Reversal

complies with Fed. R. App. P. 32(a)(7)(B) and pertinent provisions of Eighth

Circuit Rule 28A. The brief has 5,959 words, from the Interest of the Amicus

Curiae through the Conclusion, according to the word processing program

Microsoft Word 2000. A 3 ½ inch diskette containing this brief has been filed with

the Court. It has been scanned for viruses and is virus-free.

_____________________________ Ann Elizabeth Reesman Laura Anne Giantris McGuiness Norris & Williams, LLP 1015 15th Street, NW Suite 1200 Washington, DC 20005 (202) 789-8600

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of January, 2005, two (2) paper copies

of, and one (1) computer disk containing, this Brief of the Equal Employment

Advisory Council As Amicus Curiae In Support of Plaintiff-Appellant and In

Support of Reversal were sent by Federal Express Priority Overnight on this day to

each of the following:

John T. Breitbach, Esq. Keith L. Pryatel, Esq. Petrzelka & Breitbach, PLC Kastner Westerman & Wilkins, LLC 1000 42nd Street SE 3840 West Market Street Suite A Suite 300 Cedar Rapids, IA 52403 Akron, OH 44333

____________________________ Ann Elizabeth Reesman Laura Anne Giantris McGuiness Norris & Williams, LLP 1015 15th Street, NW Suite 1200 Washington, DC 20005 (202) 789-8600