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Handling FMLA leave can be complicated and nerve-racking for employers. The Family and Medical Leave Act has very specific eligibility requirements and very specific rules for the notice employees must provide, the kind of certification the employer can request and how closely the employer can scrutinize that certification. And, of course, the FMLA prohibits interference with an employee's leave rights as well as retaliation against an employee for exercising those rights. A recent FMLA decision by the Eighth Circuit Court of Appeals is a welcome reminder that sometimes an employer can survive the minefield of FMLA regulations and properly take action against an employee who abuses her rights.

In Smith v. The Hope School, 560 F.3d 694 (8th Cir. 2009), Tanum Smith sued her former employer, a residential facility for children with developmental disabilities, for violating her FMLA rights. Ms. Smith worked for the school for less than two years. During her tenure she was involved in two altercations with students. She pursued workers' compensation claims after both incidents and switched to light-duty work upon her doctor's recommendation. Her doctor also reported that she was suffering from anxiety and recommended that she have no contact with students. Ms. Smith was then assigned to work in the kitchen. During that assignment, Ms. Smith was approached by a student in the kitchen. Ms. Smith left work that day and said she would not return until she was provided with a safe working environment. The school sent Ms. Smith a letter assuring her that she would have no contact with students and warning her that if she did not report to work, her absences would be deemed unexcused. Ms. Smith did not show up for three days and the school deemed those days to be unexcused absences.

While she was out, Ms. Smith inquired about FMLA leave. She subsequently had her doctor fill out an FMLA certification form. The doctor certified that Ms. Smith was suffering from headaches and neck and arm pain. However, unbeknownst to her doctor, Ms. Smith wrote in "plus previous depression" after the doctor's description. Neither the certifying doctor nor any other doctor had ever diagnosed or treated Ms. Smith for depression. (Ms. Smith also backdated her FMLA forms and filled out a separate "Attending Physician's Statement" with the dubious depression diagnosis.) The school's HR staff, suspecting that the certification had been altered, confirmed their suspicion with Ms. Smith's doctor. Based on that information, the school denied Ms. Smith's request for FMLA leave. The school also began disciplinary proceedings against Ms. Smith for the unexcused absences, which resulted in the decision to terminate her employment.

Ms. Smith sued the school, claiming that it had interfered with her entitlement to leave under the FMLA and that her termination was in retaliation for her attempt to use FMLA leave. Ms. Smith argued that her alteration of the form should not have disqualified her from FMLA leave because the unaltered portion of the form-in which the doctor described her headaches and other pain-legitimately entitled her to FMLA leave. In other words, Ms. Smith admitted being dishonest, but argued that since she would have been entitled to leave based only on her doctor's honest statement, she should not be punished for her dishonesty. The school argued that it properly denied Ms. Smith leave based on her alteration of the certification and that because she was properly denied FMLA leave, her termination resulting from her "non-FMLA" absences was not improper.

The court agreed with the school and dismissed Ms. Smith's claims. Although Ms. Smith's theory of "harmless dishonesty" had "some superficial appeal," it was not convincing enough to support a rule that would require an employer to ignore an employee's dishonesty if the honest portions of a certification were sufficient to support leave. The better rule, the court found, is to permit an employer to deny FMLA leave to an employee who adds to a doctor's certification a condition that has not been diagnosed. Thus, the school did not interfere with Ms. Smith's FMLA rights by denying her leave based on the altered certification. Nor did the school violate the FMLA by terminating Ms. Smith's employment. Because Ms. Smith had no right to FMLA leave, she did not engage in an FMLA-protected activity, a necessary predicate to the retaliation claim that Ms. Smith asserted. 

Employer Notes: The Smith decision should give some comfort to employers who feel that they have to walk on eggshells when they want to take action against employees they believe may be abusing FMLA rights. But the decision is not a license for no-holds-barred scrutiny of FMLA leave requests. The court warned as much in its decision. The school's actions were held appropriate because the evidence of dishonesty was "especially strong." The court warned that "other, more insignificant alterations" might not permit an employer to deny leave. After Smith, employers can be more confident in denying leave to, and taking action against, employees they are fairly certain have sought leave based on fraudulent documentation, but employers should not put every leave request under the microscope and should not deny leave when insignificant defects are revealed.