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Feel free to deny FMLA leave to employee who alters medical certification

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in FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

One of the biggest problems with the FMLA has always been the certification process. Until recently, employers weren’t allowed to call a health care provider whose form looked suspicious or whose diagnosis sounded suspect.

Instead, employers had to resort to the difficult process of requesting—and paying for—another medical evaluation and certification.

Employees knew how difficult it was for employers to check up on certification forms without employee permission. Some took advantage of that by altering the forms to make their conditions seem more serious.

Now, fortunately, employers can at least call the medical provider to ask whether the information on the form is accurate and get clarification on any unclear parts. That’s an important new employer right.

As the following case shows, employers that discover an employee has altered a certification form without their health care provider’s permission can be denied FMLA leave—even if they would otherwise have been entitled to leave.

Recent case:
Tanum Smith took a job with The Hope School, a residential facility for children with developmental disabilities. It did not go well.

Twice, Smith claimed, students assaulted her. She filed for workers’ compensation and returned to work with a restriction that said she should not be around the children. The school placed her in the cafeteria in a restricted no-student zone.

Smith became anxious and got her health care provider to fill out an FMLA form for time off due to her physical condition and mild anxiety. Before turning in the form, Smith altered it by changing the dates and adding “depression” to her diagnosis. She did this without the permission of her doctor, who in fact did not diagnose depression.

HR called the doctor and learned that the form had been altered. It turned down Smith’s FMLA request. Smith then lost her job due to absenteeism.

Smith sued, alleging that her alteration was irrelevant because she would have been entitled to FMLA leave even if she hadn’t made the changes to the form.

The 7th Circuit Court of Appeals refused to go along with that idea, reasoning that allowing it would just encourage employees to embellish their forms to make it more likely they would get their requested leave. (Smith v. The Hope School, No. 08-2176, 7th Cir., 2009)

Final notes:
At the time Smith altered the form, it was technically illegal for an employer to call the employee’s health care provider without the employee’s specific permission. The court chose to sidestep that issue because the FMLA regulations have since been changed to allow employers to call health care providers without the employee’s permission to ask for clarification or authentication. Smith never challenged her employer’s call.

You may want to change your FMLA rules to warn employees that you don’t need their permission to call health care providers. That step alone could discourage alterations.

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