Tanum Smith worked as an instructional aide for Hope School, a residential facility for children with development disabilities. She suffered injuries as a result of two physical altercations with students. Thereafter, she became apprehensive about working with students. Her primary physician, Dr. Vasconcelles, provided a note restricting her to light duty and assignments that did not require her to be around Hope School residents. The School transferred Smith into a different department that did not work directly with students. As a result of a student approaching her in her new position, Smith left work citing fears for her safety. Smith was subsequent provided medical certification forms in the event she wanted FMLA leave to cover her absence. She provided the forms to Dr. Vasconcelles.
Smith picked up the FMLA paperwork from Vasconcelles' office. The paperwork supported her request for FMLA leave. After securing the FMLA paperwork, Smith altered the medical certification in several ways. She added to the the narrative description of her condition "plus previous depression." Vasconcelles nor any other doctor had diagnosed or treated Smith for depression. Smith also backdated for the FMLA form several days. She also filled out a separate "Attending Physician's Statement" in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression."
Smith provided the form to Hope School. The School subsequently confirmed its suspicion that the form had been materially altered. The School denied Smith's request for FMLA leave and terminated her for incurring unexcused absences in violation of School policy. She was not fired for altering the FMLA form.
Smith sued alleging that her termination violated the FMLA. The district court awarded summary judgment to the School. The lower court found that Smith's alteration of the Vasconcelles' health care provider certification form invalidated her application for leave under the FMLA. As such, the School did not interfere with her FMLA rights or retaliate against her for asserting them. Smith appealed the decision.
The Seventh Circuit affirmed the award of summary judgment to the School. The court rejected Smith's argument that the School was bound to read the false conditions out of the certification before determining whether the true medical condition supported her request for FMLA leave. The court opined that Smith's proposed rule would "have the effect of encouraging applicants to dress up an application for leave by adding non-existent conditions." The court held that "where an employee adds to a medical care provider's certification form a condition that she has not been diagnosed with, without the knowledge or approval of her physician, an employer can deny her request for FMLA leave."
Comment: In the usual case, the employer fires the employee for dishonesty for submitting a false medical certification. Here, the School terminated Smith for taking leave to which she was not entitled, not falsification. The court found that by altering the FMLA medical certification Smith failed to provide an adequate medical certification in support of her request for FMLA leave. She did not establish that she had a serious health condition. As a result, her leave was both unprotected by the FMLA and unexcused.
The court also rejected Smith's argument that she did not intend to obtain leave by fraud but was merely trying to be thorough. According to the court, "[w]here multiple forms purporting to contain a physician's diagnosis were in fact altered or filed out completely by a patient who knew that the physician has made no such diagnosis, we concluded that Smith was presenting false certification paperwork and thus wa not entitled to FMLA leave."
The lesson for employee's: DO NOT EVER add or modify anything to the health care provider's information on the FMLA medical certification. If you do not think the information is complete bring it to the attention of the health care provider. Let them modify the form. If they refuse to modify the form, either live with it or get another health care provider.
Smith v. The Hope School, No. 08-2176, 2009 U.s. App. LEXIS 6985 (7th Cir. March 30, 2009)
I've been trying to find if it's ok as an employer to receive from an employee a return to work certification from a Doctor who's not the Doctor who certify initially the health condition that put the employee on FMLA.
Dear Ms. Berrios,
The short answer is yes. An employer is actually not entitled to require the employee to submit a return-to-work certification from the same health care provider who supported the employee's request for leave. An employer is entitled to a return to work certification from a health care provider. The law says nothing about it having to be the same health care provider.
Thanks for reading the Blog.
Carl B
Posted by: Camille Berrios | June 18, 2009 at 08:52 AM