The FMLA Blog

Alter Medical Certification, Lose FMLA Protections

An employee who alters a medical certification form without the permission of the health care provider is not entitled to FMLA leave, regardless of whether the unaltered form would have supported FMLA coverage.  Such falsification is also independent grounds for disciplinary action.

In Smith v. The Hope School, No. 06-3244, 2008 U.S. Dist. LEXIS 29544 (C.D.Ill. April 10, 2008), the employee requested FMLA leave due to stress.  In response to the School's request, Smith secured a medical certification from her physician.  The doctor indicated that Smith suffered a serious health condition as a result of severe recurrent muscle tension headaches and  neck and arm pain as a result of work-related trauma. 

It is undisputed that Smith added the words "plus previous depression" to her doctor's description on the certification form.  She did not consult with her physician before adding this information.  Smith had never been diagnosed with depression.  She faxed the form to her employer. 

Believing that the medical certification had been altered, the School contacted Smith's doctor to check.  The School did not obtain Smith's consent before checking on the authenticity of the certification. The School confirmed that the FMLA paperwork had been altered.  The School next contacted a DOL representative, who advised that the School could deny Smith FMLA leave based on the alteration of the FMLA documentation.  That is what the School did.  The School subsequently terminated Smith for falsification of paperwork and failure to show up on three occasions.

Smith sued, alleging that the School improperly denied her FMLA leave and terminated her in retaliation for exercising her rights under the FMLA.  The School moved for summary judgment seeking to dismiss Smith's FMLA lawsuit.

Based on a review of the case law, the court found that falsification of a certification is grounds for denial of leave regardless of whether the unaltered form would have supported the employee's FMLA leave request.  The court also held that termination may be an appropriate response to the alteration of a certification form, even if the unaltered form would have supported leave. 

The court found that the School violated the FMLA by contacting Smith's doctor directly without first obtaining Smith's consent, as required by 29 CFR 825.307.  The violation, the court went on to find, was without a remedy because it did not interfere with, restrain or deny Smith's FMLA rights. 

The court reasoned that the School would have denied the leave anyway whether Smith granted such permission or not.  If permission was granted, the School would have received the same information it obtained through its unauthorized phone call: that the doctor did not certify that Smith previously suffered from depression.  If Smith refused permission, the School would have denied her FMLA leave request.

The court also reasoned that the School did not base its FMLA denial on the fact that her doctor did not diagnose Smith with depression; it based its denial, in part, on its belief that she falsified the certification form.

Because she falsified her medical certification, Smith, the court found, did not engage in protected activity.  As such, she could not make out a prima facie FMLA retaliation claim. 

Comment: Courts have had very little sympathy for employee's who alter FMLA medical documentation. The better practice is for the employee or covered family member to request that the health care provider make any changes on the existing form, or issue a brand new certification, before it is submitted.  At minimum, an employee should obtain the prior approval (preferably in writing) of his or her health care provider before submitting an altered FMLA medical certification. 

Employer Not Entitled to Diagnosis in FMLA Medical Certification

Lisa McDougal submitted a medical certification in support of her request for FMLA leave due to nausea and pain in her abdomen and back.  On the supporting WH-380 form, McDougal's doctor indicated that she suffered from a serious health condition involving incapacity of more than three days plus health care provider treatments.  In the medical facts section of the form, the doctor noted that McDougal suffered from abdominal pain, vomiting and lumbar pain.  The doctor also indicated that the McDougal was unable to perform work of any kind, the date the condition commenced, that the probable duration was unknown, and that the employee was subject to a regimen of continuing treatment under his supervision by prescription medication. 

The employer provisionally approved FMLA leave.  However, the employer noted that the certification was vague because it did not state the diagnosis with specific reasons for the incapacity.  The certification also needed to provided a better idea of how long it could last.  The employer provided a second certification to McDougal with instructions to have it completed by a specialist.  McDougal never returned the second certification form.  The employer subsequently terminated McDougal.  McDougal sued alleging interference and retaliation in violation of the FMLA.

In awarding partial summary judgment to MacDougal, the court found that it was improper for the employer to ask for a diagnosis.  The FMLA limits the information an employer is entitled to demand in a medical certification.  A medical diagnosis is not, the court found, required. 

The court also found that the employer did not have the right to require MacDougal to submit a second medical certification.  The employee reviewing the form for the employer conceded during depositions that she needed clarification of the health care condition.  By operation of DOL regulations (29 CFR 825.307), the court found that clarification assumes that the certification is complete.  When clarification is sought, a health care provider representing the employer may, with the employee's consent, contact the employee's health care provider for clarification purposes.  The employer did not do that in this case.  The regulations do not permit an employer to require an employee to submit a completely new certification to clarify ambiguities in a complete certification.

Because it was improper for the employer to request the second medical certification, it was, according to the court, equally improper to terminate the employee for her failure to provide it.

McDougal v. Altec Industries, Inc. No. 07-15-C, 2008 U.S. Dist. LEXIS 28765 (W.D. Ky. April 8, 2008)

Comment:  With the exception of pregnancy, an employer is not entitled to a medical diagnosis naming the employee's serious health condition.  An employer that insists on a medical diagnosis as part of the medical certification violates the FMLA. 

Employers are only entitled to certain information in support of an employee's request for FMLA leave.  Employers that condition the approval of FMLA leave on receipt of medical information that is not specifically permitted, like diagnosis, will run afoul of the law.  To be safe, employers should use the DOL-approved WH-380 form, and determine FMLA leave requests based only on the information the form allows you to request. 

Note that the court also found that an employer cannot insist that an employee submit an entirely new medical certification where the employer only seeks clarification of an otherwise complete certification.  Rather, where the clarification process is invoked, an employer is limited to having the employer's health care provider, with the employee's s permission, contact the employee's health care provider.

   

Employer May Require Doctor's Note to Support Paid Sick Leave In Addition to FMLA Medical Certification

It is not a violation of the FMLA for an employer to require an employee to support their request for paid sick leave with medical documentation even though the employer has separately requested that the employee provide medical certification for the same absence to determine if the leave is covered by the FMLA.

The issue was addressed in Carroll v. Potter, No. 3:05-CV-108-S, 2007 U.S. Dist. LEXIS 82737 (No. 7, 2007).  The case involved Valaine Carroll, a Postal Service supervisor.  Carroll left work early on November 18 after becoming ill.  She called the Attendance Control Office the same day, and requested FMLA leave to run concurrent with paid sick leave.  Carroll would eventually remain out of work for approximately 3 weeks.  During her absence, the Attendance Control Office provided Carroll with the necessary FMLA paperwork requesting that she provide medical certification of her condition to the Office.  Two days after the medical certification request by the Attendance Control Office, Carroll's supervisor requested that she provide "medical documentation supporting her absence."   Carroll's request for FMLA leave was approved by the Postal Service FMLA Coordinator on December 2.

Carroll subsequently received a letter of warning for failing to complete a mail count the day before she went out on FMLA leave.  She sued alleging, in pertinent part, that the Postal Service violated the FMLA when her supervisor requested medical documentation two days after the Attendance Control Office had requested FMLA medical certification for the same absence.  Carroll alleged that this second request for medical documentation by her supervisor interfered with her FMLA rights.  The court disagreed.

The court looked to the paid leave substitution requirements of 29 CFR 825.207(c).   Pursuant to those requirements, paid leave may be substituted for unpaid FMLA leave "to the extent the circumstances meet the employer's usual requirements for the use of sick/medical leave."  Under Postal Service policy, supervisors are responsible for approving sick leave and have the discretion to require employees to provide medical documentation of absences.  Because Carroll requested paid sick leave for her absence, and Postal Service policy permitted her supervisor to require medical documentation as a condition or approving paid sick leave, the court found that the supervisor's separate request for medical documentation did not interfere her FMLA rights. 

Comment:  The decision demonstrates that where paid leave runs concurrent with unpaid FMLA leave an employer may require an employee to meet the procedural requirements for both paid leave and the FMLA in order to receive the benefits of both without running afoul of the law. 

Keep in mind, though, that if Carroll had failed to provide the medical documentation to her supervisor but did provide the medical certification to the Attendance Control Office, all things being equal, she would be entitled to FMLA leave but not paid sick leave.  That is, an employee's failure to meet the procedural requirements for paid leave permits the employer to deny the employee paid leave only.  To deny FMLA leave the employer must separately determine that the employee has failed to meet the FMLA's procedural requirements.  Employer's frequently run afoul of the FMLA by denying the employee both paid and FMLA leave where an employee fails to meet the requirements for paid sick leave. 

Finally, I observe that Carroll may have had a better argument had she alleged that the Postal Service interfered with her FMLA rights by requiring that she provide FMLA medical certification.  While the FMLA permits an employer to require the employee to abide by the procedural requirements for paid leave, it also provides that, if the paid leave certification requirements are less onerous than the FMLA certification requirements, an employer may only impose the less strict paid leave requirements.  29 CFR 825.207(h). 

It is often the case that employer paid leave policies allow an employee to provide very general information (e.g., a doctor's note) as support for an employee's request for sick leave.  If that is the case, an employer would not be able to require an employee to submit the type of detailed medical certification permitted by the FMLA where paid leave runs concurrent with FMLA leave.  Rather, the employer would be limited to the far less detailed medical information permitted for paid sick leave.  Because of this fact, employer's need to take a hard look at their paid leave policies and medical documentation to ensure that, where paid leave is substituted, the employer still is entitled to receive sufficient medical information to manage the employee's leave usage.                

In Carroll, because the point was not argued we don't know that the Postal Service's paid sick leave policy is less stringent in terms of medical certification than is the FMLA.  Even assuming that the Postal Service's paid leave policy required less medical information than is permitted by the FMLA, because her FMLA leave was approved Carroll would not have been able to establish damages as a result of any technical violation by the Service.  As a result, the case would have been dismissed anyway. 

"Completely Unpredictable" Frequency Rendered Medical Certification Deficient

In a decision that will undoubtedly be welcomed by employers, the court in Tome v. Harley Davidson Motor Co., No. 1:CV-06-2155, 2007 U.S. Dist. LEXIS 78789 (M.D.Pa. Oct. 24, 2007) found that Harley Davidson did not violate the FMLA by rejecting as inadequate a medical certification identifying the frequency of episodes of incapacity as "completely unpredictable." 

In so finding, the court concluded that the requirement in 29 CFR 825.305(d) that an employer must notify an employee when it determines that a medical certification is incomplete also applies where the certification is, as here, complete but inadequate.  The court noted that, in accordance with the requirements of the FMLA, Harley Davidson properly informed the employee that "completely unpredictable" was not acceptable, and that it gave the employee a reasonable period of time (a month) to fix the problem.  When the employee did not fix the problem, Harley Davidson had the right to deny the employee's request for FMLA leave. 

Comment:  A growing number of courts have rejected so-called "blank check" medical certifications that fail to provide meaningful information regarding the estimated frequency and duration of FMLA absences. 

Employer Policy Requiring that Return to Work Certification Specify Employee Could Work Without Restriction Violates FMLA

In Clark v. Gospel Light Publications, No. 1:06-CV-327, 2007 US. Dist. LEXIS 63000 (S.D. Ohio Aug. 27, 2006), the employer's policy required that the return-to-work medical certification specify that the employee could work full duty or without restriction.  The court found that this policy violated the FMLA.  Under the FMLA, a return to work medical certification need only be a simple statement of an employee's ability to return to work.  As such, an employer's obligation to reinstate an employee is triggered where a medical certification authorizes the employee to return to work, even if the certification does not address whether the employee can work without restrictions.      

Comment:  The decision illustrates a trap for unwary employers.  The FMLA allows employers to condition an employee's return from FMLA leave on submission of a medical certification that simply attests to the employee's ability to return to work.  On the other hand, it is well established that the FMLA right to job restoration is conditioned on an employee's ability to perform all essential job functions by the time they return to work from FMLA leave.  Some employers, like Gospel Light, make a mistake when they combine these requirements for purposes of the return to work medical certification. 

To avoid FMLA violations, employers need to keep the medical certification requirement separate from the requirement that the employee be able to perform all essential job functions on the return from FMLA leave.  Employers should not deny or delay an employee's return to work because the certification, while simply stating the employee was able to return to work, failed to state that the employee's was able to return to work without restriction, or similar language.   

An exception that would allow an employer to require more information than a simple statement of an employee's ability to return to work exists where the additional information is permitted by state law or the terms of a collective bargaining agreement. 

    

Delay in Processing FMLA Leave Request Interfered with FMLA Even Though Employee Was Never Denied Leave During the Interim and Was Ultimately Granted FMLA Leave

An employer's failure to provide the forms required by the company to request FMLA leave for several months despite repeated requests by the employee interfered with the employee's FMLA rights by discouraging the employee from taking FMLA leave, even though the employee was allowed to take leave while she waited for the forms and was ultimately granted FMLA leave.   

Notice in Handbook Requiring Employee to Provide Medical Certification Insufficient Absent Timely Employer Request

An employer must specifically ask that an employee submit medical certification at or around the time leave is requested.  Absent such a timely and specific request, notification in an employee handbook that an employee must provide medical certification is insufficient to place the employee on notice that medical certification was required in order for the employee to perfect his/her request for FMLA leave. 

In Lucterhand v. Granite Microsystems, Inc., No. 05-CV-1047, 2007 U.S. Dist. LEXIS 15072 (E.D.Wisc. Mar. 2, 2007), Plaintiff Mark Lucterhand re-injured his knee at work.  He underwent surgery and was released from the hospital five days later.  He used three days paid sick leave and two vacation days during this time.  There is no question that the employer was aware of the reason for his leave.

Lucterhand returned to work with no restrictions but with limited mobility.  Essentially, he was released to return to work at his request based on pressure to return to work quickly from his employer.  The physician who released him did so with the understanding that, as acting director of global operations, he would spend most of his time behind his desk and off his feet.  Lucterhand return to work but attended two physical therapy appointments each week for several weeks, and also had follow-up visits with his surgeon.  Because he could not drive, Lucterhand also used public transportation, which also limited his availability at work. 

After his return his employer received profit estimates that fell short of expectations.  Lucterhand's supervisor expressed his displeasure with the performance of his operation.  The supervisor began to make statements suggesting that Lucterhand should have been on the workroom floor more helping, which he could not do because of his knee surgery.  Lucterhand was terminated a month after returning to work.  Lucterhand alleges that he was told he was terminated because the company did not believe that his injury was as extensive as claimed.  The company alleges that it terminated Lucterhand because of poor performance.  Lucterhand sued alleging violation of the FMLA.

The Company handbook contains an FMLA policy.  In pertinent part, the policy required an employee to provide the company with a certification of health care provider form to perfect his/her right to FMLA leave.  Company policy also provided that employee's could elect to substitute paid leave for unpaid leave.  In the event that an employee failed to meet the certification requirement, company policy provided that the leave request may be delayed or denied. 

Lucterhand never specifically asked for FMLA leave or provided Granite with a medical certification.  As a consequence, the employer argued that Lucterhand failed to perfect his right to FMLA leave, and, therefore, his FMLA retaliation claim must fail.  Lucterhand contended that the defendants' undisputed knowledge of his injury provided Granite with sufficient notice that Lucterhand's leave may qualify as FMLA leave.  The court agreed with Lucterhand.

The employer also argued that Lucterhand's failure to provide certification from a health care provider in accordance with the handbook was fatal to his FMLA claim. The Court disagreed.  The Court distinguished the cases relied on by the employer, noting that in those cases the employee failed to provide medical certification that had been specifically requested by the employer at or around the time the employee gave notice of the need for FMLA-qualifying leave.  None of the cases, the Court observed, involved the situation, as in Lucterhand, where the employer simply relied on language in their employee handbook to provide notice to the employee of the certification requirement and made no specific request for certification.

Comment:  Employers must notify employees each time it intends to require medical certification.  29 CFR 825.305(a).  Notice generally must be provided at the time the employee gives notice of the need for leave or within two business days thereafter.  29 CFR 825.305(c).  Absent a specific request for certification, an employer may not simply rely on the fact that the medical certification requirement is set forth in an employee handbook or manual.

Interestingly, the employer argued in the alternative that Lucterhand's failure to follow the procedures set forth in the handbook rendered his request for leave outside of the protections of the FMLA.  Granite argued that by failing to provide medical certification in accordance with company policy Lucterhand's absence was not covered by the FMLA.  The Court disagreed, concluding that the employer was aware that the absence could be FMLA qualifying from the known facts of his injury.  The employer could have confirmed that by conducting an investigation and/or requesting medical certification but did not. 

I think the Court missed the employer's argument. The argument is not about the adequacy of the employee's notice of the need for FMLA leave.  Rather, it was whether the employee was affirmatively electing not to have the leave covered by the FMLA by failing to abide by the known requirements of company leave policy to support FMLA leave with medical documentation.  A few courts have suggested that the failure to follow known company leave procedures does not permit an employer to deny otherwise qualifying FMLA leave, but it could be evidence to suggest that the employee was not requesting FMLA leave at all. 

Ability to Resume Full Duties is Not Required in Return to Work Certification

In Carpo v. Wartburg Lutheran Home for the Aging, No. 05 CV 1169 (JG), 2006 U.S. Dist. LEXIS 74856 (E.D.N.Y. Oct. 16, 2006), the employer's policy required that employees returning from FMLA leave provide a doctor's certification that the employee was able to resume full duties.  On the expiration of 12 weeks of leave the employee returned with a handwritten doctor's note on a prescription slip reading: "Pt may attempt to return to work on 2/3/04."  The employer found the note unacceptable.  The employee was subsequently fired.  Carpo sued alleging interference with her FMLA right to return to work by her employer's refusal to accept her return to work certification.

The Court found the fitness-for-duty certification was sufficient as a matter of law.  DOL regulations provide that the certification "need only be a simple statement of an employee's ability to return to work."  29 CFR 825.310(c).  The court rejected the employer's argument that, to be valid, a certification attesting to the fitness for duty of an employee returning from FMLA leave must contain a definitive statement that an employee is able to return to her "full duties."  According to the court:

A simple statement that the employee can return to work, possibly including qualified language and possibly excluding specification of the level of work an employee is capable of, is all that the regulation requires.  Accordingly, the present of words like "attempt" and the absence of phrases like "full duties" in Carpo's not is not fatal...

The court observed that a definitive statement that an employee is able to return to her "full duties" is not supported by the plain language of the statue and DOL regulations.  The regulations, the court continued, "contemplated the presence of qualified, precatory, or broad language in a valid note," because it provides a procedure to clarify such notes and prohibits the employer from delaying the employee's return to work while such clarification is sought.   

The policies behind the FMLA, inadequate job security for employees with serious health conditions that prevent them from working for temporary periods, also supported the courts conclusion.  The court explained:

If accepted, Wartburg's interpretation of 29 CFR 825.310(c) would subvert this purpose.  Employers would be permitted to reject a doctor's certification simply the doctor had written, "It is my believe that employee can return to work," or "Employee likely can return to work safely, but should be careful and attentive."  In implementing the FMLA, the Secretary of Labor did not intend to make an employee's job security subject to he caprice of the language in a doctor's note, or to empower employers to play "gotcha" when notes fail to include talismanic phrases.  To the contrary, it has advanced the Congressional goal of providing job security for those employees who suffer from serious but temporary health conditions by requiring only a "simply statement of the employee's ability to return to work"--and nothing more--from the doctor.

The court also opined that, as written, the note satisfied the more demanding standard advocated by the employer.  According to the court, by stating that Carpo "may attempt return to work," the note conveyed the doctor's belief that, as a medical matter, Carpo was able to resume her work.  The qualifying language "may attempt" does not intimate that Carpo is incapable of resuming her full duties, the court found, Rather, it conveyed that the doctor was not absolutely certain, but, because it is very likely that she can, it is safe for her to try.

Comment:  The decision is interesting as much for what it doesn't say as what it does.  The decision enforces a literal reading of 29 CFR 825.310(c) regarding the permissible scope of a fitness for duty inquiry.  It does now, however, address the requirement in 29 CFR 825.214(b) that, to be entitled to job restoration from FMLA leave an employee must be able to perform all essential job functions.  Carpo's employer, in a sense, included the requirement that an employee be able to perform all essential job functions on their return as part of the return to work fitness-for-duty certification.  The court clearly held that the employer interfered with the employee's rights by incorporating this requirement as part of the fitness-for-duty certification.  Presumably, at least for this court, an employer must accept the return of an employee based on a simple statement that the employee may return, and then determine after the employee comes back to work whether the employee is able to perform all essential job functions.  If not, the employee would not have perfected his or her FMLA right to return to work.  Of course, the employee's return might be permitted pursuant to more generous agency policies, the terms of a collective bargaining agreement, or other laws.  If so, the employee's rights would be governed by those laws and not the FMLA.

Lifetime Condition Did Not Prohibit Recertification Every 30 Days

In Parsely v. The City of Columbus, 2006 U.S. Dist. LEXIS 72185 (S.D.Ohio Oct. 3, 2006) the employee argued that his employer violated the FMLA by requiring him to recertify his serious health condition every thirty days.  Specifically, he argued that because his physician had certified that his back condition was lifelong his employer was precluded by 29 CFR 825.308(b)(1) from requiring that he recertify every thirty days unless the employee requests an extension of leave, circumstances have changed significantly, or the employer receives information that casts doubt on the continuing validity of the certification. The employee argues that none of these circumstances are involved.  The Court found that 29 CFR 825.308(b)(1) did not apply.  That provision, the Court observed, “does not refer to the minimum duration of the health condition.  Instead it pertains to the “period of incapacity.”  The Court agreed with the employer that the recertification request was governed by 29 CFR 825.308(a) which permits recertification every 30 days for chronic or permanent/long-term conditions. 

Comment: The FMLA permits an employer to update a medical certification by means of a medical recertification.  The frequency with which an employer may demand that an employee recertify their medical condition, however, is regulated by the FMLA.  An employer is generally prohibited from demanding that the employee recertify the medical condition more frequently than the minimum period of incapacity specified by the health care provider, with some exceptions.  That minimum period of incapacity may be more than thirty days.  As in Parsely, many employees confuse the “minimum period of incapacity” with the duration of the condition.  Remember, a period of incapacity generally means the inability to work, attend school, or perform other regular daily activities due to the serious health condition. A lifetime condition may or may not involve lengthy periods of incapacity. 

Disclosure of Medical Information Incident to FMLA Leave Request Did Not Violate the ADA Confidentiality Provisions Where the Information was Not Obtained as Part of an Employee Health Program or Medical Examination

In Wiggins v. DaVita Tidewater, LLC, No. 4:05cv157, 2006 U.S.Dist. LEXIS 66015 (E.D.Va. Sept. 13, 2006) the employee was employed as a patient care technician at DaVita’s Hope Dialysis Clinic where she provided care to patients who suffer from chronic kidney failure.  While working at DaVita she suffered a panic attacks and nervous breakdown in front of numerous co-workers and patients.  Shortly thereafter Wiggins was diagnosed with bipolar disorder.  Even though she was not required to do so Wiggins authorized and directed her physician to disclose information about her diagnosis and medical condition to DaVita.  Because of the diagnosis, Wiggins requested, and DaVita allowed her, to take twelve weeks of FMLA leave.  Wiggins believes that her supervisor shred her confidential medical information with patients and co-workers as a number of them inquired about her recovery when she returned from leave.  Her supervisor denied that she shared Wiggins’s medical information with others.  Wiggins sued DaVita alleging that the disclosure of her confidential medical information violated the Americans with Disabilities Act.  The court disagreed. 

The Americans with Disabilities Act limits the scope of information that employers may seeks and disclose about their employees’ medical condition.  The Act permits employers to gather disability information from current employees in two ways.  First, they may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program.  Second, the employer may make inquiries into the ability of an employee to perform job-related functions.  The Act requires that all information received by employers from these two channels be kept confidential.  Courts in several circuits, however, have read the Americans with Disabilities Act to require confidentially of employee medical information only when the employer obtains this information as a result of the aforesaid employee health program or inquiry.  The Act does not protect the confidentially of voluntary disclosures initiated by the employee.  Here, the court found that, even assuming that Kyle disclosed that Wiggins was diagnosed with bipolar disorder, this communication was not an unlawful disclosure of confidential medical information under the ADA because her supervisor did not obtain the information from an employee health program or employer-mandated medical examination  Wiggins voluntarily authorized her physician to disclose her medical information to her employer.

Comment: The employee may have had better luck suing for violation of the FMLA.  The FMLA protects the confidentially of FMLA medical records.  For example, The DOL implementing regulations require that all records and documents relating to medical certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records. The DOL regulations go on to provide that, if the Americans with Disabilities Act is also applicable, such records must be maintained in conformance with the Act.  As written, the DOL regulations impose confidentially on medical records that are not covered by the Americans with Disabilities Act provided they were “created for purposes of FMLA.”  The critical phrase is undefined. Here, it is not clear that the diagnosis was communicated in writing by the employee's physician to DaVita.  If it were, Wiggins may at least have survived the employer’s motion for summary judgment had she asserted an FMLA cause of action for the employer’s breach of medical record confidentiality.  It is clear that the diagnosis was the basis for the employee’s request, and the employer’s approval of, FMLA leave. This arguably satisfies the requirement the medical information was “created for purposes of FMLA.”