“Ask Sarah” Column

Dear Sarah,

I received FMLA documents from one of my employees, and I think they filled the documents in themselves! As in, I think they changed the information the doctor provided! What can I do?

Signed,
— NOT A Doctor

Dear NOT A Doctor,

You might be surprised to learn that this does not come up infrequently for me and the lawyers on my team. There are a whole host of issues that can arise in connection with the completion of FMLA documentation, not the least of which are questions regarding the content of the medical certification, which is generally completed by the employee’s medical provider.

For example, the information provided on the medical certification may be either incomplete or insufficient. Incomplete means that some required information is missing or left blank, such as certain fields, sections, signatures, dates, or other essential components.

Insufficient means that, although information was provided, it is vague, ambiguous, or non-responsive. For example, the document may be filled out but does not have enough detail to confirm that the employee’s condition qualifies under FMLA, the descriptions or medical facts provided are unclear or do not connect the condition to the leave requested, or the document raises questions about the need for the leave or the duration of the leave. Some examples we see include a medical provider writing “intermittent leave needed” without explaining the frequency or duration, or the medical facts provided are too general, such as writing “employee has a medical condition” without any further information.

In either instance, you should notify the employee in writing that the certification is incomplete or insufficient, as appropriate, specify exactly what information is missing, and give them at least seven days to provide the information. If the employee does not provide the requested information, your organization may directly contact the employee’s health care provider to obtain the required information, but whoever does the contacting must be either a health care provider, a human resource professional, a leave administrator, or a management official. Because of privacy concerns, the rules forbid the employee’s direct supervisor from contacting the employee’s health care provider.

Now, what if the information in the medical certification is complete and sufficient, but you don’t believe that a doctor actually filled it out? In some instances, it might be most appropriate to just ask the employee about it. Many of the issues that make it to my desk can be solved with a phone call. Otherwise, under FMLA regulations, you can directly inquire with the employee’s medical provider about the authenticity of information provided, even without the knowledge or consent of the employee. Again, only certain employer representatives may contact the medical provider, and before you do so, you should first work with the employee to cure any deficiencies on the face of the document.

If the medical provider confirms that the documentation was falsified, this is a disciplinary issue to address with your employee. And, of course, you are not obligated to certify FMLA leave based on false information.

My team and I regularly work through FMLA forms that are either insufficient or incomplete. Thankfully, it is far rarer that someone intentionally falsifies information, which constitutes serious misconduct. Remember, give your folks the benefit of the doubt, communicate openly and honestly with them, and give them an opportunity to correct their FMLA forms when warranted – this can be a complicated process for those who are familiar with it, and even more so for those who are unfamiliar. Reach out to us any time if there is something we can help you with in respect to this process.

“Ask Sarah” is prepared by Sarah Glaser, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.