Dive Brief:
- It’s not necessarily clear that an employer must allow an employee to fix Family and Medical Leave Act certification authenticity issues before contacting the certifying medical provider, the 4th U.S. Circuit Court of Appeals held Tuesday (Mook v. Hall and City of Martinsville, Va.).
- The opinion revives a lawsuit in which an employee resubmitted information from a previous FMLA leave request and filled out information that a medical professional should have filled out instead.
- FMLA regulations didn’t necessarily confer on the plaintiff “a clearly established right to an opportunity to cure any inauthenticity of his FMLA certification before his employer contacted the certifying health care provider,” the court held.
Dive Insight:
The plaintiff, an employee for the City of Martinsville, Virginia, had previously taken FMLA leave in 2020 to care for his mother. In 2021, the plaintiff wanted to take FMLA leave for the same purpose. As the plaintiff was filling out his certification form, he himself completed the “Health Care Provider” section, which is supposed to be completed by a medical professional familiar with the patient.
The plaintiff filled out this section based on his 2020 leave form, brought it to his mother’s doctor’s appointment, got it signed by a nurse and sent the form to his supervisor and his city’s HR department. An administrative assistant flagged to the plaintiff’s supervisor that the 2021 leave form had been improperly filled out.
When called in by his supervisor, the plaintiff admitted to filling out the form but denied deceiving the nurse. The plaintiff offered to resubmit the health care section of the form, this time with a doctor filling it out. The supervisor, per court documents, “maintained that [the plaintiff] had shown poor judgment by filling out the certification himself and that doing so cast doubt on his honesty.” When the plaintiff didn’t take the offered opportunity to resign, his supervisor fired him.
The plaintiff sued, claiming that his supervisor and the city interfered with his FMLA rights by contacting his mother’s medical provider in violation of FMLA regulations and then terminating his employment.
While the FMLA’s regulations allow employers to reach out to providers for clarification after an employee has had a chance to deal with any incompleteness or insufficiency, it’s not necessarily clear that the requirement also applies to authenticity issues, the court explained, remanding the case to the lower court.
In the more settled scenarios involving incomplete or insufficient certification, employers seemingly need to give workers time to correct those issues. In the U.S. Department of Labor’s Wage and Hour Division’s Frequently Asked Questions page on FMLA compliance, it answers the following question: “What happens if my employer says my medical certification is incomplete?” DOL says the employer must advise the employee if the certification is incomplete, allowing “a reasonable opportunity to cure the deficiency.”
Per DOL, an employer must state in writing what information is needed to make the form complete, and needs to allow at least seven calendar days to fix it — “unless seven days is not practicable under particular circumstances despite the employee’s diligent good faith efforts.”