Under the FMLA, parent cannot take family leave for an adult child
unless that child has a physical or mental disability as defined by the
ADA. Also, grandparent cannot take family leave for a grandchild.
Novak v.
MetroHealth Medical Center, 503 F.3d 572 (6th Cir. September 28,
2007)
Facts: This is a Family and Medical Leave Act ("FMLA") action.
MetroHealth has a no fault attendance policy. FMLA leave is not counted
as an unexcused absence. An employee accruing 112 points under the
policy during any rolling twelve month period is subject to termination.
Donna Novak accrued 124 points between April 16, 2003 and April 16,
2004. The question presented is whether leave she took in late March
should have been counted as FMLA leave. On March 22, she reported that
her eighteen-year-old daughter was having a baby. On March 23, she
arrived late for work without explanation. On March 24, she could not
work due to "back pain." On March 25, she reported that her "back was
out." On Saturday March 26, she e-mailed her supervisor that she need to
be off on emergency leave from March 29 to Thursday April 1 because her
daughter was suffering from postpartum depression and her new grandchild
had been readmitted to MetroHealth.
With respect to Novak's back problems, she provided a medical
certification from Dr. Wloszek, but he did not fill out the part related
to her recent medical problem because he had not seen her since October
2003. When MetroHealth advised Novak that the certification was
incomplete, she called Dr. Wloszek's office and insisted that his
assistant complete the rest of the form. The assistant did so without the
doctor's permission. At a pre-discharge meeting, MetroHealth questioned
the authenticity of the medical certification form. MetroHealth gave
Novak another week to submit medical certification forms. MetroHealth
contacted Dr. Wloszek (based on a medical release provided by Novak) and
Dr. Wloszek informed MetroHealth that he had not seen Novak since
October 2003, lacked personal knowledge of her March 2004 back problems,
and did not complete the medical certification form. A few days later,
Novak asked Dr. Wloszek to complete the medical certification form. He
did so, but he advised MetroHealth that he completed the form based on
information provided to him from Novak.
MetroHealth determined that she was not entitled to FMLA leave and
she was terminated.
District court: The district court granted summary judgment
for MetroHealth.
Appeal: With respect to Novak's back problems, Novak argues
that MetroHealth should have advised her of the deficiencies in Dr.
Wloszek's medical certification and allowed her a reasonable opportunity
to correct them. If that duty was triggered here, the court finds that
MetroHealth satisfied that duty by informing her that the certification
was deficient and giving her a week to cure the deficiency.
Next, Novak argues that if MetroHealth was dissatisfied with Dr.
Wloszek's medical certification that it should have sought a second
opinion before denying her leave. The Sixth Circuit disagrees. 29 U.S.C.
§ 2613(c)(1) states that an employer who has reason
to doubt the validity of the employee's certification may require, at
the expense of the employer, that the eligible employee obtain the
opinion of a second health care provider. This court has previously
recognized that this provision of the FMLA is "merely permissive" and
does not impose an affirmative duty on an employer. The court notes that
other circuits have found that if the employer foregoes its right to a
second opinion, it is not thereafter precluded from contesting the
validity of the employee's serious health condition.
Next, Novak argues that MetroHealth required her
to submit a medical certification from Dr. Wloszek (who had not seen her
recently), rather than her new doctor, Dr. Patil. But there is
insufficient evidence to support this allegation.
With respect to her claim of denial of family
leave, her daughter suffered from postpartum depression for one
to two weeks. Under the FMLA, a parent can only take family leave for an
adult child if that child has a physical or mental disability as defined
by the ADA. Postpartum depression that lasts only one to two weeks does
not substantially limit the major life activity of caring for oneself.
Next, the FMLA does not allow a grandparent to
take family leave to care for a grandchild.
Finally, the district court dismissed without
prejudice some remaining state law claims. This lawsuit was originally
removed from state court. The Sixth Circuit holds that where a lawsuit
is removed and the district court later declines to take supplemental
jurisdiction, the state law claims should be remanded to state court
rather than being dismissed without prejudice.