August 04, 2026
4th Circuit Finds FMLA Regulations “Not So Clear”
I appreciate this case as I have pondered this question more than once.
Clarification: The FMLA regulations provide that if an employee gives an employer a medical certification that is deficient in some way, such as a box is not checked or “frequent absences” are not defined, the employer must give the employee notice of the deficiency. The employee then has at least seven days to provide the requested or clarifying information before the employer may contact the employee’s health care provider (HCP) for clarification.
Authentication: This is a different matter. Here, an employee provides you with a medical certification that has no deficiency. It is complete and clear. However, you have a reason to doubt that the employee’s health care provider or an authorized representative filled it out. It looks like a date was changed or maybe the handwriting looks like the employee’s. Does the same rule apply in this instance?
What made me smile as I read this case was the court’s description of the federal regulations. “We conclude that the regulations are not so clear...” After extensive analyses, including a review of the FMLA’s regulatory history, citations from section X to subsection Y, and at least five references to Webster’s New World Dictionary, the 4th U.S. Circuit Court of Appeals (covering MD, VA, WV, NC & SC) held, “No.” The employer did not violate the FMLA when it contacted the employee’s HCP to verify or confirm that the HCP completed the form.
Lessons learned?
(1) Take heart. No wonder we sometimes find regulations less than clear; so do the courts!
(2) This employee was fired for “showing poor judgement” and “casting doubt upon his honesty” after the employer contacted the nurse that signed his medical certification form and was told the employee filled out the section that was to be completed by the HCP. This decision applies only in the states covered by the 4th Circuit. It also applies to the specific details of this case. A similar but different set of facts could have a different result even in the 4th Circuit. When in doubt check with your company’s employment counsel before contacting an employee’s HCP without the employee’s notice and consent.
