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Follow the certification trail when you suspect employee is gaming medical leave

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in FMLA Guidelines,HR Management,Human Resources

Let’s face it: Some employees would sooner lie than follow the rules.

When faced with increasing disciplinary pressure over absences, some may falsely claim they’re missing work because they have a serious health condition. After all, the word on the street is that employers can’t terminate employees for taking FMLA leave. Requesting leave may seem like a reasonable way to keep from getting in trouble.

But, when asked to provide certification of their serious health condition from a health care provider, employees may realize they can’t. One answer? Fake it.

What’s an employer to do? There are several approaches you can take.

You could request a second certification from a health care provider you select—at your cost. If that proves contradictory, a third employer-paid examination breaks the tie. But obviously, this approach can get expensive, since you are required to pay for the additional certifications.

An alternative: Do what the em­­ployer in this case did. After concluding the certification was not genuine, the employer refused to allow FMLA leave and terminated the employee under its attendance policy.

Recent case: Jami Coffman worked as a quality coordinator at a Ford transmissions manufacturing plant. After five years on the job, Coffman began to miss work, taking over 86 sick days in a two-year span. Ford had approved all the leave after re­­ceiving documentation from Coffman.

Ford employees work under an attendance policy that begins with warnings and escalates to termination after 10 unapproved absences. The policy specifies that if employees wanted to take FMLA leave, they must turn in a certification within 15 days of the absence. The policy warns employees that if they don’t follow the rules, they could be denied leave even if they are otherwise eligible.

Coffman was terminated after she submitted two serious health condition certifications for an absence. One stated that her medication had changed, causing complications. The other stated that she was undergoing evaluations for a seizure disorder.

HR sent the certifications to the company’s in-house doctor, who noted that they were medically contradictory. He then pulled out prior certifications and noticed that the medical provider signatures weren’t anything like the older ones. He requested permission to contact Coffman’s health care providers, who confirmed they had filled out certifications for Coffman.

However, the documents still contradicted the earlier certifications. For example, there was no previous mention of seizure-disorder testing and no reference to medication changes.

Ford’s doctor concluded that the last certifications Coffman had submitted were fraudulent, and she was terminated.

Coffman sued, arguing that the FMLA requires employers to give employees an opportunity to fix medical certifications they deem insufficient.

The court disagreed in this case. It pointed out that a fraudulent form is entirely different than an incomplete form. It ruled that Ford was within its rights to count Coffman’s absence as unauthorized. (Coffman v. Ford Motor Company, No. 10-3842, 6th Cir., 2011)

Advice: Consult your attorney in cases like this. It helps to have specific rules against dishonest behavior. List fraudulent certifications as an example of behavior that warrants discharge. Use the dishonesty as additional grounds for discharge.

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