The FMLA Blog

Disclosure of FMLA Medical Information to Supervisors, Human Resource Professionals, and Union Representative Did Not Violate FMLA Confidentialy Provisions

Joanne Holland was employed as a nurse at the Dallas Veterans Affairs Medical Center ("Dallas VA").  She requested FMLA leave for a variety of stress-related ailments incident to her filing an EEO complaint against her supervisor, Cathy McClellan.  Holland supported her request for FMLA leave with medical documentation.  Holland made the request to Associate Director of Patient Care Services Sandra Griffin.  Griffin notified Dallas VA personnel, including McClellan, of Holland's request for FMLA leave.  Holland had asked that Griffin not be involved with her request for FMLA leave.  It was subsequently determined that Griffin, as her immediate supervisor, had to approve of Holland's request for FMLA leave.  Holland subsequently submitted her FMLA leave request to McClellan.  Griffen held two telephonic conferences with Holland and other members of the Dallas VA staff to discuss Holland's request, which was approved. 

Holland sued, alleging that the disclosure of her medical information to McClellan and other Dallas VA personnel violated the FMLA's medical confidentially requirements of 29 CFR 825.500(g).  In relevant part, the regulation states that "[r]ecords and documents relating to certifications, recertifications or medial histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records."   The federal district court disagreed.

The court initially noted that it is not entirely clear whether an aggrieved individual can file a civil lawsuit for violation of the medical confidentially provisions.  Assuming, without deciding that a private right of action does exist, in awarding summary judgment in favor of the Dallas VA, the court found that Holland had failed to establish a violation.  While the Dallas VA did release and discuss her medical information supporting her request for FMLA leave, the court found that such disclosure fit within the regularly exception that "[s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations."  29 CFR 825.500(g)(1).  The court noted that the discussion regarding Holland's FMLA leave request was limited to McClellan, Griffin, Mariamma Kurian, Holland's second-line supervisor, Holland's Human Resource representative, Chris Seaton, and Richard Shaw, Holland's union representative.  

Comment:  The decision reminds employers that FMLA medical information is confidential and should be shared only with those individuals with a legitimate need to know.  In this case, the court found that the employer had the right to share Holland's FMLA medical information with her initial and second-line supervisors and a company human resource representative in order to consider her leave request. That is, these managers and supervisors had a legitimate reason for the information.  The limited exception allowing disclosure confidential FMLA medical information would not, for example, apply in the event one of these managers and supervisors were to share the information with a colleague as idle gossip.    

Interestingly, the decision included disclosure of Holland's medical information with her union representative.  As written, the exception to the medical confidentially provisions of the FMLA include "supervisors and managers," not union officials.  Unfortunatley, the decision does not address whether the union official was part of the conversation at Holland's request, which would likely be construed as a limited waiver of the FMLA's confidentiality requirements.   

Query whether an employer could disclose confidential FMLA medical information to the union over the objection of an employee without violating the FMLA?  A union may have an independent contratual and legal right to be present at a management-employee interview, and to demand relevant information for purposes of a grievance and/or to "police" the collective bargaining agreement regardless of an employee's wishes.  Because of the obvious Hobson's choice facing employers - of violating the FMLA, the CBA, or federal/state labor laws by releasing or not releasing requested medical information - courts will likely permit an employer to disclose FMLA medical information to the union provided such disclosure is required by the CBA and/or labor laws. 

Needless to say, employers should exercise great care when disclosuring FMLA medical information to the union even where it is required.  While it likely can't be required as a condition, the employer might ask the union to sign a confidentiality provision prior to releasing the information.  Alternatively, the employer could provide the information with a memoranda emphasizng the highly confidential nature of the information being provided and the union's need to keep the information confidential.  The employer may also want to address how the information will be stored, returned or disposed of.  The union might tell the employer that is none of their business, but at least the employer is on record of addressing the issue in the event the matter results in a jury trial.   

The union receiving the information would be well-advised to treat FMLA medical information as highly confidential.  Simply tossing the information into an unsecured grievance file would likely be a "bad" move.  While a union's mishandling of FMLA medical information secured from an employer would not give rise to an FMLA violation, it may be the basis for a costly and embarasing lawsuit on alternative grounds.  The proper handling of confidential employee medical information, including FMLA certifications, is an area where the union and employer should seriously consider reaching agreement. 

 The decisions is Holland v. Shinseki, No. 3: 10-CV-00908 B (N.D. Tex. Jan. 18, 2012), https://ecf.txnd.uscourts.gov/cgi-bin/sHWo_PUbliC_DoC?2010cv0908-55

   

  

No FMLA Protections Based on Incomplete Medical Certification

Janet Lewis was employed as a civilian in the Air Force as Director of a the Elmendorf Air Force Base Child Development Center.  She requested 120 days of FMLA leave due to her own serious health condition. The Agency required Lewis to support her request for leave with the WH-380 medical certification form.  Lewis had her doctor fill out the form, which she submitted in support of her leave request. At the same time, she submitted a prescription from her doctor, and a 2006 letter from another doctor.  Kathleen DeShasier, Lewis's supervisor, told her the documents she submitted were insufficient to support her request for FMLA leave.  Lewis refused to submit more information, believing that she had provided all the information necessary under the FMLA.  When she failed to show up for work, the Agency fired her AWOL.  She appealed her removal through the administrative and federal district court, without success. 

Before the Ninth Circuit, Lewis argued that the documents she submitted provided sufficient medical facts to support the conclusion that she suffered from an FMLA-covered serious health condition. The Ninth Circuit disagreed.  Lewis's WH-380, the court observed, "states only that she was diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescriptions medications, and 120 days off work." 

Significantly, the Court found that the WH-380 form was incomplete because it failed to-

• provide a summary of the medical facts that support the diagnosis;
• contain an explanation as to why Lewis was unable to perform her work duties; and
• address what additional treatments would be required for her condition.

The   rejected Lewis's alternative argument that she submitted adequate medical documentation to the HR department in support of her workers'compensation claim.  Along with her OWCP claim, Lewis did, the Court found, submit medical documents and a detailed diagnosis.  However, Lewis did not deliver the OWCP documents to her supervisor. Instead, she specifically requested that the HR department keep her medical records confidential and out of her supervisor's hands.  In so doing, the Court essentially found that Lewis could not rely on her OWCP documents as a way to supplement her incomplete WH-380.

Comment:  To substantiate an employee's request for serious health condition FMLA leave, an employer may require the employee to submit a complete medical certification.  The permissible content of that certification is governed by federal regulations.  To determine whether the leave is covered by the FMLA, an employer may not require an employee to provide more medical information than is permitted by law.  While an employer may voluntarily agree to accept a medical certification with less medical information than permitted  (employers are not mandated to require any medical certification), they are perfectly within their rights to insist that they receive a complete medical certification. 

Some employee's are very reluctant to disclose their medical condition to their supervisor or employer when requesting leave.  They fear that their highly confidential medical information will "get out" and become fodder for the office rumor mill.  These employees tend to offer sparce medical certifications.  These certifications may even have something written in every area of the WH-380 form, but the information provided is either incomplete or useless.  When offered the chance to submit additional information, these employees, like Lewis, often refuse.   

Employees who refuse to provide additional information run the considerable risk of losing FMLA protections.  As with Lewis, employees who forge ahead and take the leave anyway in the belief that they did provide a complete medical certification, and that the employer is wrong, run the considerable risk of being disciplined for AWOL.  Before risking your job, employees better be certain that they are right and their employer is wrong on this issue.  Check with your union, the US US Department of Labor, or an attorney. 

Note that the Court rejected Lewis's argument that she satisfied her FMLA medical certification by providing additional medical information to the HR department as part of the OWCP claim. While the Court did not spell it out, the implication is that she was required to submit her FMLA request to her supervisor, not the HR department.  Moreover, she specifically asked that her OWCP medical documents be kept confidential including from her supervisor. 

Providing medical information, but not to the right person or office, is another (failed) tactic frequently used by employees who don't want to disclose information to their supervisor even though that is what may be required by the employer's policy.  For example, as in Lewis, employees will send their medical documentation to a medical or OWCP unit with confidentiality restrictions, and then claim that they satisfied the FMLA because they provided the certification to their employer writ large.   

Where the employer has a policy or practice requiring the employee to request leave and provide supporting medical certification through the immediate supervisor or a specified office, providing the medical documentation to some other unit of the employer will not secure the protections of the FMLA.  Courts have not allowed employees to game the system by providing supporting medical documentation to someone within the company, but outside of the policy or practice.   

Lewis v. USA, No. 10-35624 (9th Cir. May 26, 2011), http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf

      

 

 

 

 

Incomplete Medical Certification is not a "Negative" Certification

In Verkade v. US Postal Service, No. 09-1268 (6th Cir. May 27, 2010), the Court rejected the determination of the trial court that the USPS was entitled to rely on prior incomplete medical certifications as negative certifications to deny Verkade's request for FMLA leave.  The Court found that an incomplete medical certification is not the same thing as a negative certification. The difference is important because an employer may rely on a negative certification to deny an employee's request for FMLA leave.  A "negative certification" is one that is complete, but that "facially demonstrates that the absence was not FMLA-qualifying."  Stoops v. One Call Commc'ns, Inc., 141 F.3d 309, 311 (6th Cir. 2006).  For example, a certification that indicated that the employee would not need to be absent from work is a "negative certification."  The certifications in Verkade were not invalid; rather they were incomplete and lacked sufficient information to make a determination whether the condition was FMLA-qualifying.   The Court went on to affirm the award of summary judgment in favor of the Postal Service on other grounds.

A second noteworthy aspect of the decision involves the Court's determination that five days afforded Verkade a reasonable opportunity to cure the cited deficiencies in one of the medical certifications he submitted.  The Court found five days reasonable in light of the extensive "history of Verkade's interaction" with the Postal Service FMLA Office, including multiple prior notices detailing the deficiencies with the prior, substantively identical certifications he submitted. 

Comment:  The decision teaches: (1) employers may not rely on incomplete certifications as "negative certifications" to deny FMLA leave; and (2)the calculation of a reasonable period to cure medical certification deficiencies may be influenced (e.g., lengthened or shortened) by the employee's prior awareness of what is required to submit a complete, valid medical certification to support FMLA leave.  

The decision is based on version of the FMLA regulations that was superseded by revised regulations that went into effect on January 16, 2009.  Under the revised regulations, the employer must give an employee at least seven calendar days to cure identified deficiencies.  If seven days is not practicable despite the employee's good faith efforts, the employer must provide an unspecified amount of additional time.  If the employee fails to cure the deficiencies within the seven days (or longer, if impracticable), the employer may deny the taking of FMLA leave.  See 29 CFR 825.305(c). 

With respect to the calculation of a reasonable period to cure certification deficiencies, the Verkade decision should remain viable where it is not practicable for an employee to cure deficiencies within seven calendar days.  

Employers Are Not Required to Assume That All Medical Absences Subsequent to Chronic Serious Health Condition Diagnosis Are Related to that Condition

Jeremy Crown was diagnosed with Type I Diabetes in August 2006.  Nissan, his employer, granted his request for 10 days of FMLA leave to cover the absence that led to the diagnosis.  In October 2007, Crown was absent from work for three consecutive days.  Crown claimed that the absences were related to his Diabetes.  Pursuant to Nissan policy, he submitted a medical certification substantiating his request for FMLA leave to cover the absence.  The health care provider who filled out the certification checked the box for an absence of more than three consecutive days.  The health care provider did not check the box for a chronic condition.  Nissan denied the request for FMLA leave because Crown was not incapacitated for more than three consecutive calendar days.  Nissan also assessed Crown with 4 points for unexcused and excused absences.  The four points put him over the company's attendance policy limit.  Crown was terminated.

Crown sued alleging that his termination violated the FMLA.  Crown argued that, notwithstanding the failure of the medical certification to substantiate his request for FMLA leave, Nissan should have granted him FMLA leave anyway.  Crown reasoned that Nissan knew he had an FMLA-covered condition (Diabetes) since August 2006.  It knew that the condition would continue for an indefinite period.  As such, Nissan, Crown argued, should have known that this three-day absence in October 2007 resulted from a period of incapacity due to his chronic serious health condition because it was aware that he had this condition and was likewise aware that the condition had previously necessitated leave.  Crown contended that he should not be penalized because of the lack of competence or familiarity of the health care provider who filled out the certification.  The court disagreed.  

The court rejected as without merit the argument that Nissan should have known that that his absences were related to his chronic condition despite the health care providers failure to so indicate simply because it knew he had been earlier diagnosed with a chronic condition.  The court observed:

By this argument, plaintiff is, in effect, contending that once an employer is on notice that an employee has a chronic health condition, the employer must thereafter assume that all medical absences from work are related to that condition. This position is directly contradicted by those provisions of the FMLA which permit the employer to require notice that leave is requested for a a qualifying reason and which authorize the employer to require the plaintiff to furnish certification for his health care provider that each period of absence is covered by the FMLA. 

The court went on to observe that "[t]he FMLA does not require an employer to be 'clairvoyant.'"  If an employee fails to provide its employer with the required notice, the employer can deny leave even if the employee has a serious health condition. 

The court awarded summary judgment to Nissan.

Crown v. Nissan North American, Inc., No. 3:08CV418TSL-JCS, 2009 U.S. Dist. LEXIS 47633 (S.D. Miss. June 8, 2009). 

Comment:  To ensure FMLA coverage where an employee or covered family member has a previously established qualifying reason for FMLA leave, it is incumbent on the employee to link the present need for leave with the known qualifying reason.  Courts will not assume such a connection, particular where, as in Crown, the connection is not substantiated in a supporting medical certification. 
The DOL codified the linkage requirement in 29 CFR 825.303(b) of the modified regulations.

The case also teaches employees that they should review the medical certification before handing it in to ensure that it supports the request for leave.  If it does not, or if the employee has any questions regarding the information on the form, the employee should take the matter up with the health care provider before submitting the documentation.  The health care provider should make any corrections on the certification form.  The employee should NOT modify the certification form.    

Denial of FMLA Leave for Submission of Altered Medical Certification Appropriate Even if Employee Might Otherwise Be Entitled to Leave

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)

      

Requiring Employee to Submit to Second Health Care Provider Examination Did Not Violate the FMLA

In Chapen v. Munoz, No. 3:06-cv-00353-BES-VPC, 2009 U.S. Dist. LEXIS 15147 (D.Nev. Feb. 25, 2009), employee argued that the State employer interfered with her deceased husband's FMLA rights by directing him to submit a second health care provider examination.  The husband had provided a medical certification in support of his request for FMLA leave.  The direction to submit to a second health care provider exam violated the FMLA, Plaintiff argued, because the physician called for the second exam would ignore "etiology of the stress."  Because the second physician would likely not agree that the husband was entitled to FMLA leave, the husband was placed in a "catch-22" situation and felt "compelled to resign."  By putting him in that no-win situation, the State, Plaintiff argued, violated the FMLA.

The court granted the State's motion and dismissed the FMLA claim.  The court noted that the FMLA allows an employer who has reason to doubt the validity of the a medial certification to obtain a second medical opinion at the employer's expense.  Because the State had the right to require a second health care provider exam, the husband's refusal to agree to see the second specialist failed to act in good faith.  Such refusal is not protected activity within the meaning of the FMLA.  The fact that the second health care provider may not agree with the first did not justify the refusal to cooperate because the regulations permit the employee to seek an opinion from a third health care provider. 

Comment: The opinion is interesting in two respects. First, the court appears to have assumed that the employer had reason to doubt the validity of the initial medical certification thereby justifying the employer's direction that the employee submit to an exam by a second health care provider.  The court did not address why this was the case.  Nor is it evident from the facts why the employer had reason to doubt the validity of the initial certification.  This would appear to set a rather low bar for the circumstances when an employer has reason to doubt the validity of the initial certification. 

Second, the court misread who has the right to invoke the right to an exam by a third health care provider.  The court found that the employee's refusal to submit to a second health care provider exam was not protected because "the statute provides that in the case of conflicting opinions, the employee has the right to seek an opinion  from a third health care provider..."  That is simply incorrect. Under both the "old" and "new" regulations (29 CFR 825.307(c)), "if the opinions of the employee's and employer's designated health care providers differ, the employer may require the employee to obtain a certification from a third health care provider..." 

Perhaps the Plaintiff would have fared better had they pointed out that the employer failed to articulate any reason to doubt the validity of the initial medical certification.  If the facts warranted, the Plaintiff may have also been able to demonstrate that the employer has had an incredible knack for picking favorable second health care opinion providers (e.g., who find no serious health condition, or with greatly diminished need for FMLA leave) and the employer never or seldom invokes the third health care provider appeal process. Rather, the employer sticks with the more favorable second opinion.  Combined, the above arguments might be enough to defeat a motion to dismiss/summary judgment.       

 

   

"Honest Suspicion" of Fraud Justified Request for Second Health Care Provider Opinion

Kim Barnes was an unhappy employee as a result of the reclassification of her position and policy changes by LaPorte County, her employer.  She voiced her unhappiness and intent on transfering to another department.  She also began missing work more frequently.  At the end of a two-week vacation Barnes faxed in a note from her doctor excusing her from work for an additional two weeks.  As requested, Barnes submitted a completed WH-380 in support of her leave request due to stress and insomnia.  Suspecting fraud, the County sent Barnes a letter notifying her that she needed to obtain a second medical opinion and that a doctor's appointment had been scheduled on her behalf.  Barnes did not attend the scheduled appointment because she felt it was unjustified.   Instead, she submitted another note from a nurse requesting additional leave.  The  County terminated Barnes for "continued absence from work."  Barnes sued alleging violation of the FMLA.  The County moved for summary judgment.

Barnes argued that the County did not have the right to require her to submit to a second health care opinion to verify her request for FMLA leave.  The second health care opinion provider process, Barnes argued, was limited to verifying the inital certification and not to secure additional medical information.  The court disagreed.

The court found that, under the facts, the County had an honest suspicion that Barnes' application for FMLA leave was not legitimate to justify its request for additional certification by an independent medical examiner.  The County noted the frequency and timing of Barnes' absences; Barnes' known frustration regarding the policy changes; Barnes' repeated statements to her supervisor of her intention to leave her position; Barnes' efforts to clean out her desk prior to taking an extended leave of absence; the fact that the initial certification was the result of a telephone consultation; and the curious timing of her vague leave requests, being faxed on the last day of Barnes' vacation.

The court went on to find that Barnes forfeited her FMLA protections by failing to attend the second opinion appointment to certify her leave. 

Comment:  The FMLA allows an employer who has reason to doubtt the validity of a medical certification initially provided by the employee to obtain a second opinion at the employer's expense.  The circumstances where an employee may have a reason to doubt the validityof the initial medical certification offered by an employee were not specified in the statute or the regulations.

Barnes' argument appears to be based on Albert v. Runyon, 6 F. Supp. 2d 57, 63-65 (D. Mass. 1998).  In that case, the court rejected the employer's explanation that it needed a second health care opinion to independently assess the employee's medical condition. The Albert court observed:

Instead, the employer should determine whether the provided information demonstrates that the diagnosed condition is a serious health condition within the meaning of the FMLA.

The court in Albert observed that the second opinion process "does not contemplate an adversarial investigation into a patient's symptoms and complaints." It also noted that the employer failed to identify any deficiency with the initial certification, and that it failed to support its suspicion regarding the objectivity of the initial health care provider.

Here, the Barnes decision reads a reason to doubt the validity more expansively than does the Albert court.  As in Albert, the County did not identify any deficiency with the initial medical certification.  Unlike Albert, the record suggests that Barnes' initial health care provider may have failed to follow generally accepted treatment practices by certifying the condition based on a telephone consultation rather than as a result of an in-person physical examination.  Critically, the court in Barnes looked to all of the surrounding circumstances, not just the contents of the certification, to determine whether the employer had a reason to doubt the validity of the initial certification.           

Note that the court had no problem with the employer setting the appointment for the second health care opinion.

Medical Certification Based on Employee's Self-Diagnosis Properly Excluded

In Knox v. Cessna Aircraft Co., Nos. 08-12827, 08-13046, 2008 U.S. App. LEXIS 24070 (11th Cir. Nov. 24, 2008), the Court affirmed the trial courts decision excluding as unduly confusing and prejudicial a medical certification and physician testimony that Knox required a three-week extension of FMLA leave due to back problems.  The doctor admitted during depositions that he completed the certification based solely on representations made by Knox to his nursing assistant over the telephone.  The doctor had previously released Knox to return to work after conducting medical tests, including a CT scan.  The doctor conceded that he could not state "to a reasonable degree of medical certainty" that Knox had a "serious medical condition that required [Knox] to be absent from work."  The Eleventh Circuit agreed that the doctor's testimony was not reliable because he did not have personal knowledge to certify that Knox had a serious health condition, particularly where Knox's self-diagnosis conflicted with the available medical evidence.

Comment:  To be valid, a medical certification of an FMLA-covered serious health condition must be the product of a reasonable medical assessmentt, including tests and examination.  A medical certification based on an employee's phoned-in self-serving self-diagnosis will not support an employee's request for FMLA leave.  

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.