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The Employer Handbook Blog
The FMLA Trap You May Be Walking Into—Even When Fraud Seems Obvious
“He filled out the doctor’s section himself.” Sounds like fraud, right? Maybe. But if you fire someone on that hunch without following the FMLA’s rules, you could be the one in legal trouble.
TL;DR
A federal court refused to dismiss a lawsuit brought by a former employee who claimed he was fired for submitting an improperly completed FMLA certification. Even if the form looked suspicious, the court emphasized that the employer still had to follow the FMLA’s process—including giving the employee a chance to fix it. Skip that step, and you might be the one violating federal law.
A Risky Termination (Allegedly)
Here’s how the story goes, according to the employee’s complaint:
He needed FMLA leave to care for his mother, who had severe osteoporosis. HR gave him the standard Department of Labor certification form—the one that’s supposed to be completed by a health care provider.
Instead of handing it off to the doctor, he filled out most of it himself using information from a prior year. At a routine appointment, he gave the form to a nurse and—he says—explained exactly what he had done. The nurse left the room, returned a few minutes later, and signed the form, noting it was on behalf of the doctor.
The employee faxed the form to HR. But the employer allegedly contacted the doctor’s office and was told that no one there—nurse or physician—had completed or authorized the form. The nurse allegedly believed he was signing a one-day excuse note.
A few days later, the employee was told to resign or be fired. He chose termination. According to the complaint, no one ever told him the form was deficient, and he was never given a chance to fix it.
Fraud or Not, the Rules Still Apply
Can an employer skip the FMLA’s certification process if it suspects the employee submitted a fraudulent form? That was the key issue in the case.
The employer’s position: this wasn’t a technical mistake—it was dishonesty. But the court didn’t find an exception in the FMLA for suspected fraud.
In the court’s words, “Whether it be a fraud investigation or a routine verification screen, the FMLA regulations are clear as to what an employer must do.”
So what does the law require?
🔹 Step 1: If a certification is incomplete or insufficient, the employer must notify the employee in writing and explain what’s wrong.
🔹 Step 2: The employee must be given at least seven calendar days to cure the defect. (29 C.F.R. § 825.305(c))
🔹 Step 3: The employer may not contact the health care provider to clarify or authenticate the form until the employee has had that chance. (29 C.F.R. § 825.307(a))
According to the complaint, the employer skipped all of that: it never notified the employee of any deficiency, never gave him the seven-day window, and reached out to the provider before the employee could fix the form. Then it fired him.
That, the court said, was enough to support a claim for FMLA interference.
Takeaways for Employers
✅ Don’t skip the 7-day cure rule. Even if a certification raises eyebrows—or smells like fraud—you’re still required to notify the employee and give them a chance to fix it.
✅ Be careful with provider contact. The FMLA sharply limits when and how you can reach out to a health care provider. Unless the employee has had the opportunity to cure the form, contacting the provider may itself be a violation.
✅ Train your decision-makers. A well-meaning fraud investigation won’t shield you from liability if your managers ignore the process the law requires.
✅ Create a clear record. If something seems off, document your concerns and your compliance with the FMLA steps. A good-faith paper trail goes a long way in litigation.
The Bottom Line
This case isn’t about whether the employee lied. It’s about whether the employer followed the rules. And under the FMLA, suspicion isn’t a substitute for process.
So if something about the certification seems wrong, slow down, document everything, and follow the steps. That’s how you protect your company and stay out of court.