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Ensure FMLA Medical Certifications Are Complete and Authentic Forged certifications bedevil employers

     
     
    By Allen Smith, J.D.
     
    Complete and authentic Family and Medical Leave Act (FMLA) medical certifications are essential to prevent abuse of intermittent FMLA leave. HR must know who can provide the certifications and what should be in the documentation.
     
    The FMLA regulations define which health care providers may provide medical certifications (see 29 C.F.R. § 825.125). Once, Myra Creighton, an attorney with Fisher Phillips in Atlanta, had a client whose employee tried submitting a certification from his shaman, but the employer rejected that.
     
    Doctors aren't the only health care providers who may certify FMLA leave. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors can all certify leave, as can nurse practitioners, nurse-midwives, clinical social workers and physician assistants. Each of these providers must be licensed to practice in the state. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston may certify FMLA time off as well.
     
    Employers have difficulty interpreting the regulatory definition's "catch-all phrase" describing who can provide a medical certification: "any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits," Creighton noted.
     
    So, who is excluded from the definition? She had a client whose employee had a sinus infection and got a certification from a dentist. That did not automatically disqualify the certification, Creighton said. But then she found out the plaintiff was dating the dentist. "You can look for things like that" when determining whether the certification is valid, she said.
    Employers don't like getting certifications from family practitioners for someone's psychiatric impairment, Creighton noted, but, she said, "there's nothing under the FMLA to prevent that."
    Be sure the medical certifications are signed, she added.
     
    Frequency and Duration
     
    It's particularly important that the health care provider complete on the certification the estimated frequency and duration of expected incapacity, according to Creighton.
    The health care provider may say something like intermittent leave will be needed "once or twice a month," she noted. Or a doctor may say "a maximum of six days a month," for example.
    Creighton said if a pattern of intermittent leave emerges, like on a particular day every week, that might signal abuse. A pattern like this is fine if the person is seeking treatment on that day but may not be OK if the person has an episodic condition like depression, Crohn's disease or migraines, in which case the regularity of the time off starts looking "sketchy" to her. This is particularly the case if the time off is always on Mondays or Fridays or the day before or after a holiday. Those are the easier examples of abuse to identify, she said.
     
    Creighton said if the employer suspects the employee is taking advantage of FMLA time off, then it might seek clarification about the medical certification's estimated frequency, asking the health care provider whether it's medically necessary. Once, she circled back to a doctor who said the employee shouldn't be missing any more time from work at all.
     
    Another factor she considers is whether employees are maxing out their intermittent leave each year. FMLA time off is based on the workweek. Assuming a worker has a five-day workweek, he or she would be entitled to a total of 60 days of FMLA (5 days multiplied by 12 weeks). Some employees take 60 days of intermittent leave every year. Creighton is skeptical that such employees really need that time off for FMLA every year and recommends authenticating the certification in such instances.
     
    The Department of Labor cautions that only HR, a leave administrator, another health care provider or a management official may contact the health care provider to authenticate or clarify the certification. Under no circumstances may the employee's direct supervisor contact the employee's health care provider.
     
    Even if just seeking a clarification of information from the health care provider, the employer will need authorization from the employee, Creighton noted.
     
    Forgeries
     
    Stan Hill, an attorney with Polsinelli in Atlanta, has seen a number of forged certifications. Signs of forged forms include lines that are heavily crossed out and different handwriting. One employee sent a certification from a fax machine that was not in a doctor's office, which made the company suspicious, he said.
     
    If the employer knows that the employee has a relative who works at the office of the certifying doctor, the employer might scrutinize the documentation more closely, suggested Soña Ramirez, an attorney with Clark Hill in San Antonio.
     
    If HR suspects forged documentation, it should send a copy of the certification form to the health care provider and ask him or her to confirm that the form is legitimate, recommended Jennifer Englander, an attorney with Ogletree Deakins in New Orleans.
     
    While the provider might require the employee to sign a Health Insurance Portability and Accountability Act authorization, the employee must cooperate with the authentication process, noted Joan Casciari, an attorney with Seyfarth Shaw in Chicago. "An employee's failure to allow authentication could result in denial of the leave and other adverse consequences," she said.
    If the health care provider denies issuing the certification, HR should confront the employee about it, Ramirez said. "If the employee admits to it or you do not find her credible, you can proceed to termination," she stated.