Beyond the Doctor’s Note: Tools for Validating FMLA Requests

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Suppose an employer learns that an employee who claimed a serious health condition under the Family and Medical Leave Act (FMLA) faked his injury to take time off for personal business. What steps can the employer take without violating the FMLA?

I read a Ninth Circuit decision last night that offers valuable insights into the complexities of managing FMLA requests and the importance of thorough documentation and investigation.

The Case:

An underground haul truck driver reported a workplace injury, claiming chest pain from hitting a mine wall with his truck. He delayed reporting the incident until the end of his shift. Medical exams showed no visible injury, but he was diagnosed with a chest wall contusion based on his own reports of pain, and his leave was approved.

The company investigated. No evidence of the collision was found, and a coworker alleged the injury was fake. A private investigator caught the employee doing activities that contradicted his claims. When confronted, the employee had “nothing to say,” and the company terminated him for violating company policy.

The employee sued for FMLA interference and retaliation. He argued that the company should have sought additional medical opinions instead of relying on other evidence. But the Ninth Circuit disagreed.

What Employers Should Know:

The FMLA provides employees with the right to take leave for serious health conditions, but it also allows employers to ensure that these claims are legitimate.

However, employers can also rely on non-medical evidence to challenge the certification if they have reason to doubt its validity. Indeed, the FMLA states that an employer “may require” second and third medical opinions. “The word ‘may’ is permissive,” noted the Ninth Circuit. The Court elaborated:

“The plain language of the FMLA therefore merely provides an employer with the option to require a second or third opinion and seek recertification. It does not require an employer to provide contrary medical evidence if it doubts the validity of the original certification, let alone mandate that an employer must do so in order to challenge the sufficiency of that original certification in court.”

Indeed, the court accepted that employers can use various forms of evidence, including surveillance footage and witness statements, to verify the legitimacy of an FMLA claim. This can be particularly useful in cases where there is suspicion of fraud.

This means employers have tools beyond medical opinions to address fraudulent claims.

What Employers Can Do:

  • Have Clear Policies: Clearly outline documentation requirements and the steps for verifying claims in your FMLA policies.
  • Request Documentation: Require employees to provide proper certification for their FMLA leave.
  • Train Your Team: Train HR staff on how to handle FMLA requests, including using non-medical evidence when appropriate.
  • Seek Help When Needed: Involve legal counsel when investigating or disputing questionable claims.

This decision provides HR professionals and business owners another tool to navigate the complexities of FMLA-related issues and mitigate potential risks.

“Doing What’s Right – Not Just What’s Legal”
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