A doctor’s testimony that he treated the plaintiff twice for bronchitis was sufficient to deny the employer’s motion for summary judgment on plaintiff’s FMLA interference claim, even though the doctor had stated on the FMLA certification form that he had only treated the plaintiff once for bronchitis.  Kossowski v. City of Naples (M.D. FL, February 6, 2015).

The decision is troubling for employers, who rely on information provided by health care providers on the certification to decide whether to grant or deny FMLA leave. That is the purpose of the health care provider’s certification. If a health care provider could later dispute his or her own certification entries, even the most astute employer’s decision-making process would be jeopardized.

The parties disputed whether plaintiff had a “serious health condition” under the FMLA. The critical issue was whether the plaintiff had “continuing treatment by a health care provider.” On the FMLA certification form, the plaintiff’s doctor indicated that he had treated the patient on February 4 only.  During the litigation, the plaintiff argued that he actually treated with his physician twice. The second treatment occurred on February 11, when he visited his doctor to obtain a return to work authorization and to have his FMLA documents filled out. The doctor testified that he also examined the plaintiff on February 11.  Because of the dispute about whether the doctor treated the plaintiff once or twice, and “that the inferences arising from these facts may differ,” the court denied the employer’s motion for summary judgment on this FMLA interference claim.

The employee had also argued that he had a “serious health condition” because he treated with a health care provider once and had a regimen of continuing treatment. The employer argued that bronchitis was not a “serious health condition” because it was more like the common cold and the medication prescribed—a Z-Pak and a cough syrup with codeine–was a preventive measure, not treatment of bronchitis. The court denied the employer’s motion for summary judgment on that argument as well.