Wednesday, July 24, 2013

Is this the worst fake doctor’s note ever? And what could you do about it?


Buzzfeed recently published the above note, which an employee provided asking his boss for a day off from work. Not only did the employer refuse the time off, but, as you can see above, the employer edited the note, remarked on all of the typos, errors, and misspellings, and returned it to the employee with the caption, “How NOT to fake a doctor’s note.”

Even though an employer might have every reason to believe that a doctor’s note is fake, an employer runs the risk of an FMLA violation by summarily denying time off without following the FMLA’s procedures for authenticating a medical certification.

Authentication

  • The FMLA permits an employer to contact the medical provider who purported to provide the certification to authenticate the document.
  • Authentication means providing the health care provider with a copy of the certification and requesting verification that the health care provider who signed the document completed or authorized it.
  • An employer may not request any additional medical information.
  • An employer must first provide the employee with the opportunity to authenticate the note.
  • If, however, the employee fails or refuses, the employer, through a health care provider, human resources professional, leave administrator, or management official—but not the employee’s immediate supervisor—may contact the employee’s health care provider directly for purposes of authentication.

Second and Third Opinions

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second (and possibly third) opinion:

  • The second opinion must be at the employer’s expense.
  • Pending receipt of the second opinion, the employee is provisionally entitled to all of the benefits of the FMLA, including intermittent leave. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the employer then has the right to retroactively designate the leave as non-FMLA.
  • An employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider must be one that it does not regularly contract with otherwise regularly use the services of.
  • If the opinions of the employee’s and the employer’s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer’s expense. This third opinion is final and binding.
  • Upon request by the employee, an employer is required to provide the employee with a copy of the second and third medical opinions within five business days of such request.

Your gut instinct might say fire this employee, but following that instinct could get you in trouble under the FMLA if note turns out to be legit. Following the FMLA’s rules for authentication, and second and third opinions, will give you the legal ammo to fire the offending employee. In the meantime, place the employee on conditional FMLA leave, which is unpaid. A few weeks down the road, once you confirm that the note is inauththentic, you can fire the employee without having incurred much expense or burden in the interim (save a couple of medical exams if you have to go the route of second and third opinions).

For more on verifying FMLA leaves of absence, I recommend Jeff Nowak’s recent post on his FMLA Insights Blog, entitled, Is Your Employee Paying a Deception Service to Provide You a Fake Doctor's Note or FMLA Certification?

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