Q&A: Follow FMLA procedures for verifying medical certifications – Technologist

Question: We recently had an employee provide an FMLA medical certification that we believe was falsified. Our company confirmed with the employee’s medical provider that they did not complete the certification and we suspect that our employee forged the documentation. Can we discipline or terminate them for this conduct?

Answer: Maybe, but only after complying with the procedures under the federal Family and Medical Leave Act (FMLA) regulations. These types of situations are frustrating, especially when you believe that you can terminate or discipline for a legitimate reason. In this situation, it may be risky to terminate an employee after confirming that their medical provider did not complete the medical certification. The FMLA regulations provide a strict set of procedures that must be followed when trying to authenticate or clarify medical certifications from employees (29 CFR 825.307(a) and 29 CFR 825.305(c)).

To question the authenticity of an FMLA medical certification, you must give the employee seven days to “cure any deficiencies” in the certification. Your notification to the employee must be in writing and state what additional information is required. Following that period, a human resources professional, leave administrator, or management official (as long as they’re not the employee’s direct supervisor) may contact the health care provider and provide a copy of the certification. You may request verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document.

Disciplining and/or terminating an employee without following the procedures outlined in the FMLA regulations may create a basis for an FMLA interference claim. The company can be held liable for FMLA interference if it creates a situation where the employee is hindered from using the FMLA leave that they are entitled to. If the company tries to assert that it disciplined or terminated the employee for violating a company policy (i.e. falsification of records, dishonesty, etc.), then the employee may respond that the company failed to comply with the FMLA regulations for authenticating a medical certification.

For more information about FMLA certification procedures, see our Legal Guide, FMLA: Certification Procedures, or Vigilant members can contact their assigned Vigilant Law Group employment attorney with any specific questions.