Question: We have an employee who we are fairly certain is falsifying her doctor’s notes. Are we legally allowed to contact the doctor’s office to verify the notes are indeed legitimate?
Answer from the experts at HR.BLR.com:
Thank you for your inquiry regarding requesting verification of suspicious doctor’s notes.
Because of the sensitivity of health information, this practice should be approached carefully.
It is unclear whether this employee is eligible for or taking medical leave under the Family and Medical Leave Act (FMLA). However, even if the employee is not taking leave under FMLA, the FMLA procedures for authenticating a medical certification may be useful. If the employee is eligible for FMLA, note that the employer runs the added risk of FMLA interference if protected medical leave is denied without following these authentication procedures.
The FMLA does permit an employer to contact a medical provider who has supposedly provided medical certification in order to authenticate that document (CFR §825.307). However, “authentication” should be limited to the most basic, factual inquiry – specifically, providing the appropriate health care provider with a copy of the certification and simply requesting the health care provider to verify that the document was, in fact, provided and signed by that office/professional for the date(s) in question.
The employer should not request any additional medical information. (Note: Due to HIPAA restrictions, competent medical providers should not be willing to provide more than this basic information anyway.)
Additionally, in the case of FMLA certifications, if a document is incomplete or seems suspicious, the employer must first approach the employee and provide the employee with an opportunity to “cure” the document. If the employee fails or refuses to do so, then the employer (through appropriate personnel other than the employee’s immediate supervisor) may contact the health care provider directly for authentication.
(If the employee is not taking FMLA leave, this step is not mandatory, yet it may still be most practical to simply approach the employee about the suspicious documentation first. The employee may admit to falsifying the document outright, which can then be handled according to your company’s standard disciplinary and absenteeism policies.)