LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Buzzfeed recently published this 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.”
Amazingly, even though this employer has every reason to believe that this note is fake, the employer runs the risk of an FMLA violation by summarily denying the day off, and not following the FMLA’s procedures for authenticating a medical certification.
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:
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 inauthentic, 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?
Visit the Ohio Employer's Law Blog for more practical employment law information.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or firstname.lastname@example.org.
For more information about LexisNexis products and solutions connect with us through our corporate site.