According to regulations issued under the Family and Medical Leave Act, if an employer receives a deficient medical certification of an employee’s need to be away from work, the employer can request clarification from the employee’s medical provider. However, that rule requires the employer to provide advance notice to the employee of the deficiency and its intent to seek such clarification. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) concluded that the FMLA regulations do not require such advance employee notice when the employer is seeking to authenticate the medical certification itself.

In Mook v. Hall, the Fourth Circuit reversed a district court judgment in favor of an employee who was fired after requesting FMLA leave to care for a sick relative. The employer requested medical certification of the need for leave, and the employee returned a form the employer believed was filled out by the employee instead of the healthcare provider. The employer contacted that provider and confirmed that a nurse signed the form, but that its contents were written by the employee. The employer terminated the employee for this action and he sued, claiming interference with his FMLA rights.

The plaintiff claimed that the employer had violated the FMLA by contacting his provider before notifying him of the issue. In support of this argument, the employee cited an FMLA rule that requires such advance notice when the employer attempts to clarify deficiencies with the certification. The Fourth Circuit rejected this argument, using statutory interpretation and a review of the rule’s history to define “deficiencies” as limited to medical certifications that are incomplete or insufficient. The court noted another FMLA regulation that allows the employer to authenticate the certification without providing the employee with advance notice.

This case reminds employers of the need to carefully follow FMLA rules before attempting to clarify ambiguous or incomplete information contained in the medical certification form. However, the employer has the ability to confirm that the provider actually filled out the form without warning the employee in advance. In our practice, we see a disturbing number of FMLA medical certification forms that turn out to have been forged. This decision avoids a situation where the employer would have to give the employee advance notice of its intent to confirm a suspected fraudulent certification.

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