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Employee Who Falsified Medical Information Not Entitled to FMLA Leave Regardless of Underlying Condition

    Client Alerts
  • April 10, 2009

Employers that request medical certification for leave under the Family and Medical Leave Act sometimes suspect that the information provided has been falsified or altered by the employee to provide a basis for the leave request.  A new decision from the Seventh Circuit Court of Appeals provides employers with grounds for denying FMLA leave in the event that such falsification is confirmed.

In Smith v. The Hope School, the plaintiff was injured by a student at the school, resulting in a Workers’ Compensation claim.  She returned to a light duty job that did not involve contact with students.  Her physician eventually released her back to work, but she left when her job duties involved proximity to students.  She requested FMLA leave, but her physician only listed physical restrictions on the certification form.  The plaintiff added the words “plus previous depression” to the form, even though her doctor never treated her for this condition.

The employer confirmed this addition when it called the doctor’s office, and subsequently denied the FMLA leave.  After the plaintiff was terminated for absenteeism, she sued, alleging discrimination, retaliation and interference with FMLA rights.  The Seventh Circuit affirmed dismissal of her claim.  The plaintiff admitted altering the medical verification form, but claimed that even without the alteration, it provided an adequate medical basis for concluding that she suffered from a Serious Health Condition under the FMLA.

The court concluded that regardless of the makeup of the original certification form, the plaintiff’s fraud prevented her from claiming entitlement to FMLA leave.  Employers cannot be expected to tease out the truth from an altered medical certification form.  Any other decision would encourage employees to “dress up” the medical information by adding non-existent conditions.

Employers should not deny FMLA leave on the basis of fraudulent medical certification in the absence of clear, documented proof.  Under the new FMLA regulations, employer can directly inquire with the employee’s medical provider about the authenticity of information provided, even without the knowledge or consent of the employee.  When fraud is confirmed, employers can use this as the basis for denying leave benefits.