Court: Employee entitled to 'cure' suspicious FMLA certification


Employer contact with the health care provider is limited

Employers may require employees to provide a certification supporting the need for leave under the federal Family and Medical Leave Act (FMLA), but employees can be entitled to “cure” (fix) a suspicious one or one that’s insufficient or incomplete.

The problem

Daniel requested leave to care for his mother, who had a serious health condition. As part of the leave administration steps, the company HR department gave Daniel a certification form to be completed by his mother’s health care provider.

Daniel took the form to a medical appointment with his mother. He gave the form to his mother’s nurse, who left the room with the form — presumably to discuss the certification with the doctor — then returned to the room and signed it, followed by the phrase “per Dr. -----.” Daniel subsequently gave the signed form to HR.

HR, however, had concerns about the authenticity of the certification. It, therefore, contacted the health care provider to confirm its authenticity. The medical office said that the doctor did not authorize anyone to fill it out or sign the certification on the doctor’s behalf.

Seeing this as fraud, the company fired the employee. In response, the employee sued.

The arguments and decision

The employee claimed the employer wrongfully investigated the allegedly fraudulent certification (which he maintained was not fraudulent at all), and in so doing, violated his FMLA rights.

The employer contended that its actions were permitted under the FMLA regulations that say, “authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document.” 29 CFR 825.305(c)

In siding with the employee, the court said the employer could seek authentication, but before it did, it was supposed to contact Daniel and give him a chance to cure any purported deficiencies in the certification. The employer suspected that Daniel himself had filled out the section, as it claims the handwriting was clearly the same as the section he was directed to fill out. The employer did not contact Daniel first to give him the opportunity to “cure any deficiencies” in the certification.

This court appears to have indicated that suspicious certifications are insufficient. Therefore, before contacting the health care provider even for authentication purposes, employers are to allow employees a chance to fix certifications.

Mook v. City of Martinsville, Virginia, and G. Andrew Hall, Western District of Virginia, No. 4:23-cv-00028, June 14, 2024.

Key to remember: 

Before taking a negative employment action against an employee for a suspicious certification, allow the employee a chance to fix it.

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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