The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of leave during a 12-month period under certain circumstances which include a “serious medical condition.”  An employer is allowed, under the regulations associated with the FMLA, to require an employee to document his or her medical condition, and further may require the employee to submit certification of that condition from a health care provider.

Recently, the 7th U.S. Circuit Court of Appeals addressed a situation in which an employee altered her health care provider’s certification to add an impairment that had not been diagnosed by that provider.  In that case, the Court upheld the lower court’s summary judgment in favor of the employer, finding that the employee’s alteration invalidated the entire application.  Smith v. The Hope School, 7th Cir., No. 08-2176, March 30, 2009.

Tanum Smith worked for The Hope School from May 2005 until September 2006.  In her position, Smith worked with developmentally challenged children as a one-on-one instructional aide.  During 2006, Smith was injured on two separate occasions: first in April, when she was pushed to the ground by a student who then struck and kicked her, and then in June, when she was hit in the mouth, after which Smith suffered neck pain.  During the following months, Hope School attempted to work with Smith to place her in a position without student contact, consistent with restrictions instituted by Smith’s doctor. 

On August 22 or 23, however, Smith went the school‘s HR department to complain that her job assignment was “unsafe,” and that she was leaving until a safe assignment could be found for her.  At that point, Smith was informed that if she failed to appear for work on August 25 as scheduled, her absence would be considered as “unexcused,” putting her job in jeopardy.  However, on August 24, Smith left a phone message, asking for FMLA leave. 

Smith then was provided with FMLA paperwork, and was told to complete it as soon as possible.  Smith took the paperwork to her physician, who completed it that same day, although Smith did not pick up the forms until September 6.  At that point, Smith added to her doctor’s description of her condition the words: “plus previous depression,” in spite of the fact that no doctor had ever diagnosed or treated Smith for that condition.  In addition, she submitted a second form that her doctor had not filled out or signed, adding more information about her “depression.”  She then faxed the altered paperwork to the school.  Because the school suspected that the certification had been altered, the school’s HR department called the physician’s office to ask about the form.  Upon receiving confirmation that the form had been changed, the school contacted the Department of Labor, who advised them that they could deny Smith’s request for leave, which they did.  Smith was then disciplined for her absences from work, and ultimately was fired. 

Smith then filed a lawsuit against Hope School, alleging that the school had interfered with her FMLA rights and had retaliated against her for requesting the leave.  The lower court granted summary judgment in favor of the school, finding that Smith’s alteration of the provider’s certification invalidated the FMLA application, and that the school’s decision to terminate Smith’s employment for unexcused absences was appropriate in that circumstance.  That decision was upheld on appeal by the Seventh Circuit.

FMLA may be denied to an employee who attempts to receive such leave fraudulently.  The Smith decision is of note, however, because Smith actually had a valid basis for FMLA leave without the “plus previous depression” language.  Therefore, the question reviewed and decided by the Seventh Circuit is whether an employer can deny FMLA leave to which an employee might otherwise be entitled because that person submitted false paperwork.  According to the court, it can.

While this decision is one of which employers should be aware, employers also should be advised that the court emphasized the limited nature of the ruling, pointing out the “especially strong inference” that Smith had intentionally submitted false paperwork.  The court specifically stated that it did not reach the question of whether more insignificant alterations, such as “correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician,” would result in a similar ruling.   This comment by the court adds a level of difficulty for employers, who now will have to review such circumstances on a case-by-case basis to determine whether each circumstance includes the “especially strong inference” of falsity evident in Smith’s case.


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