Responding to insufficient FMLA/CFRA medical certifications and suspected fraud

Most employers require medical certification when administering FMLA or CFRA leave of absence requests. But the certification process isn’t always as cut and dry, especially in California. For instance, what should you do if the documentation from a healthcare provider is vague, incomplete, or ambiguous? What can you legally do if the documentation doesn’t provide you with the information you need to properly designate leave? What if you don’t believe the documentation is authentic?

Determining Whether the Medical Certification is Complete

There are some specific questions you can ask yourself to determine if a medical certification is complete. In a recent CER webinar, “FMLA/CFRA Certifications: How to Get What You Need to Designate Absences,” Julie M. Davis outlined these for us. They include:

• “Does the certification state when the condition started and how long the condition is expected to last?” If not, the certification is incomplete and you can request this information.
• “Does the certification provide the medical facts as to why leave is needed?” Some examples of relevant medical facts may include: hospitalized for a week; surgery on May 1 with anticipated three-week recovery time; over the next month, physical therapy appointments required for 2 hours per day, 5 times a week, etc. Certifications that do not provide medical information to support the need for leave are insufficient. For example, if the certification simply states the employee needs to be out for 3 weeks, without relevant medical facts, that is insufficient.
• “Does the certification have information as to why the employee cannot perform his or her key job functions?” This question is only for leave that is based on the employee’s serious health condition, not for a family member’s serious health condition.) Some examples of information outlining an employee’s inability to perform key job functions include: unable to lift more than 5 lbs.; unable to sit for more than 15 minutes at a time; bed rest required, etc.

If you determine that the information is insufficient, then you should follow the FMLA provisions on this matter, as the CFRA is silent on the employer’s right to clarify. You should inform the employee in writing and explain why the medical certification is insufficient. Ask the employee to cure the defect, tell the employee he or she has 7 calendar days to cure it, and explain the consequences of not doing so (the leave could be denied). You do have the option to contact the healthcare provider directly to cure the defect if such contact is authorized by the employee.

If you cannot read the form, do not immediately contact the healthcare provider directly, unless you have already obtained proper written consent from the employee for such contact. In general, treat an unreadable certification as incomplete and simply ask the employee to cure the defect by providing a legible certification form.

Likewise, if the certification has all fields complete but fails to provide enough information to make the leave determination, treat it as an incomplete form. Inform the employee, in writing, of what additional information is needed, but make sure that the request for additional information is not a request for detailed information beyond what is necessary to make the determination. In California, be sure the request for additional information is not a request for a diagnosis.

Determining Whether the Medical Certification is Authentic

What if you have received a completed medical certification form, but suspect it may not be authentic? Some signs of deception might include:

• Very poor copies
• Certification written so poorly it cannot be read
• Contact information for the healthcare provider is missing or inaccurate
• The form simply states that leave is needed without any supporting facts
• The form was not mailed from the healthcare provider’s office

Naturally, these signs alone are not necessarily evidence that the medical certification has been falsified, but they should serve as red flags. If you find yourself in this situation, you can provide the healthcare provider with a copy of the medical certification and request verification, e.g., “is this your signature?” or “Did you complete this form?” Employee permission is not required to simply ask for verification, but the employer cannot request additional medical information from the healthcare provider directly without permission.

If the employer still doubts the validity after obtaining verification information, the employer may require a second opinion, at the employer’s expense. In this case, the employer may designate the healthcare provider. The employer is only able to the obtain information necessary to determine if the leave request for a serious health condition should be granted. If the employee-provided opinion and employer’s second opinion conflict, the employer may require third opinion (this is only instance where asking for a third opinion is okay). Again, the employer must pay, but this time the healthcare provider must be mutually selected. The opinion of the third healthcare provider is final and binding.

To register for a future webinar, visit CER webinars.

Attorney Julie M. Davis is a partner in the Orange County office of Carothers DiSante & Freudenberger LLP. She has extensive experience defending a variety of class action matters across various industries, including consumer, wage & hour, and other employment-related class actions.