32 NOVEMBER / DECEMBER 2021 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. FMLA Fraud and Abuse ’Tis the season Employers often experience an increase in requests for leave under the Family Medical Leave Act around the holidays. What should an employer do if presented with a fraudulent medical certification, or if an employer suspects an employee is using the time off for non-FMLA reasons? False Medical Certification Forms An employee who alters a medical certification form without the permission of the health care provider is not entitled to FMLA leave. Falsification of the form is also independent grounds for disciplinary action. An employer is protected against liability for retaliation claims if the employer can show that it acted based on a reasonable suspicion or “honest belief” that the employee had engaged in FMLA fraud. For example, in Smith v. The Hope School, an employee requested FMLA leave due to stress. The employer provided the employee with the requisite FMLA paperwork. In response, the employee submitted a medical certification from her physician in which the physician indicated that the employee suffered a serious health condition as a result of severe recurrent muscle tension headaches and neck and arm pain. The employee then added the words “plus previous depression” to the certification form, but did not consult with her physician before adding that information. The employer reasonably suspected that the employee had altered the form and contacted the doctor to authenticate the form. The employer did not obtain the employee’s consent before contacting the doctor to check on the authenticity of the certification. The employer confirmed that the form had been altered, since the physician had not added the depression language. The employer denied the FMLA leave and terminated the employee for falsification of the FMLA paperwork and unexcused absences. The employee then sued the employer, claiming that the employer improperly denied her FMLA leave and terminated her in retaliation for exercising her FMLA rights. The district court granted summary judgment in the employer’s favor, and the decision was affirmed by the Seventh Circuit Court of Appeals. The Seventh Circuit found that the employer had a reasonable suspicion of fraud, and that falsification of the FMLA certification was grounds to deny FMLA leave. Furthermore, because the employee had falsified her medical certification, she did not have a retaliation claim. What should an employer do if presented with FMLA paperwork that appears to have been altered or is indicative of possible fraud? Before denying the FMLA leave or taking disciplinary action, an employer should have clear, documented evidence. An employer can contact the employee’s healthcare provider to confirm the authenticity of the information provided.1 An employer should also meet with the employee, show the employee the forms, and ask for an explanation. Suspected Abuse If an employer has an honest belief that an employee is abusing intermittent leave (e.g., calling in sick on Fridays and Mondays, or immediately before or after
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