FMLA Articles

Employee falsified certification, but employer didn’t act

It was 2015 when Bob began taking FMLA leave to care for his wife, who was struggling with symptoms related to multiple sclerosis. He took leave in November 2015, then again in mid-2016, and finally in early 2017. In each situation, Bob provided a certification supporting the need for leave, but the two later ones were typed, and instead of a doctor’s handwritten signature, they were digitally signed. The employer was going through some budget cuts, and when it looked for employees to cut, one was Bob, since staff members complained about Bob being difficult to work with, that he had a poor attitude, and was rude to vendors. He and another employee with a poor performance record were laid off soon after Bob returned from his latest leave. As can be the case when employees feel mistreated, Bob sued, claiming that he was terminated in part because he took FMLA leave. In defending the FMLA claim, the employer argued that the two leave certifications Bob submitted for leave in 2016 and 2017 were falsified. Supporting this claim, the doctor who supposedly signed the two certifications declared that he had not seen the patient since April 2016, and that he did not complete, authorize, or sign, digitally or otherwise, any FMLA paperwork for Bob or his wife, and that he uses a handwritten signature, not a digital one. Bob’s wife also testified that she had no appointments with the doctor during Bob’s FMLA leave periods taken in 2016 and 2017. Bob tried to argue that he received the certifications from the doctor via email but deleted them. The doctor, however, said he never communicated with Bob via email. The court didn’t buy Bob’s arguments and agreed with the employer that Bob’s version of the events was blatantly contradicted by the record, so that no reasonable jury could believe them, and that the FMLA did not protect Bob because he fraudulently obtained FMLA leave. A question remained, however, as to whether the employer would have terminated Bob for submitting falsified FMLA certifications (had it known at the time). Despite declaring that it would, the employer had no evidence supporting this. Therefore, the employer did not get summary judgement on this point. Takeaway: If you receive a certification that looks suspicious, it can pay to investigate and determine if it is authentic or false, and have evidence supporting a termination decision – even if that decision occurs later. Straub v. County of Maui, et al., District of Hawaii, No. 17-00516, September 24, 2019. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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