Employee is Faking a Health Condition
Q: What are my rights if I think that an employee is faking a disability to qualify under the ADA, or a serious health condition to qualify for FMLA leave?
A: In both cases you have the right to request a medical examination to substantiate the disability or serious health condition. But, the ADA and FMLA provide very different requirements and procedures for requesting these exams, and things can get complicated.
Under the ADA, when you make the request matters. You have the right to request an examination in response to an employee’s request for an accommodation (i.e., during the “interactive process” when the employer and employee are supposed to be discussing the nature of the disability and the appropriate accommodation). You also have the right to require the employee to go to a doctor of your choice if they provide insufficient documentation (but remember that the examination must be limited to the employee’s ability to perform the essential functions of the job, nothing else). But, if you want to request an exam after the accommodation has already been provided, it can get tricky. At that point, you’ll have to demonstrate some “business necessity” – this can get complicated. Call the Hotline for details as needed.
Like the ADA, the FMLA gives you the right to request an exam in response to the initial request for leave. Unlike the ADA, however, the FMLA imposes cumbersome requirements for obtaining clarification about the medical documentation. For example, supervisors are strictly prohibited from contacting the employee’s doctor. There are also various complex notice requirements — if you think the employee is falsifying the basis for the request for FMLA leave, call the Hotline for further information.
Note that FMLA regulations also set specific requirements about the circumstances in which employers can request later medical certifications. For example, typically you can only request a re-certification every 30 days. The good news: the regulations allow you to request a re-certification before 30 days if you receive information casting doubt on the validity of employee’s certification.
MEA’s goal is to provide current, detailed and useful information to HOTLINE callers, but our responses do not constitute legal advice about what you should or should not do in a particular situation. You should always consult legal counsel, in the context of a confidential attorney-client relationship, before taking any action that could have legal implications for you or your business. If legal services are needed, MEA members are entitled to a discounted fee arrangement with the Powell Trachtman law firm, which serves as MEA’s general counsel. For more information, contact Michael G. Trachtman at email@example.com.