FMLA certifications can be verified before employer wait

The 4th U.S. Circuit Court of Appeals ruled Tuesday that employers do not have to wait for workers to fix problems with the authenticity of Family and Medical Leave Act certification documents before contacting the certifying medical provider.

The case centered on an employee for the City of Martinsville, Virginia. He had previously taken leave in 2020 to care for his mother. In 2021, he sought leave for the same reason. While filling out the required certification form, the employee completed the “Health Care Provider” section himself, a task that should have been done by a medical professional familiar with the patient.

He filled out this section using information from his 2020 leave form. He brought the form to his mother’s doctor’s appointment and obtained a nurse’s signature. He then submitted the form to his supervisor and the city’s HR department. An administrative assistant flagged the error to his supervisor.

When called in by his supervisor, the employee admitted to filling out the form but denied deceiving the nurse. He offered to resubmit the health care section of the form, this time with a doctor filling it out. The supervisor, according to court documents, maintained that the employee had shown poor judgment by filling out the certification himself and that doing so cast doubt on his honesty.

When the employee declined the opportunity to resign, his supervisor fired him. The employee then sued, claiming his supervisor and the city interfered with his FMLA rights by contacting his mother’s medical provider and then terminating his employment.

This ruling creates a distinction between incomplete forms and improperly completed forms. In situations involving incomplete or insufficient certification, employers generally must give employees time to correct those issues. The U.S. Department of Labor’s Wage and Hour Division states that if an employer says a medical certification is incomplete, the employer must advise the employee and allow a “reasonable opportunity to cure the deficiency.” The DOL requires a written statement of missing information and at least seven calendar days to fix it unless seven days is not practicable despite the employee’s diligent good faith efforts.

The 4th Circuit decided that FMLA regulations did not 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 remanded the case to the lower court for further proceedings.

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