Takeaway: If an employer has questions after an employee submits a certification for leave under the Family and Medical Leave Act, it usually must ask the employee for clarification or supplementation. However, if the employer believes the certification to lack authenticity — that is, that it was written by the employee and not the health care provider — the employer may be able to contact the provider immediately to verify the form.
An employer that suspects a Family and Medical Leave Act (FMLA) medical certification is not authentic might be allowed to contact the health care provider right away, without first giving the employee a chance to correct the form, according to the 4th U.S. Circuit Court of Appeals.
The employee worked as an assistant commonwealth’s attorney for the City of Martinsville, Va. In May 2020, he took FMLA leave to care for his ailing mother. A year and a half later, he again requested FMLA leave for additional family care leave.
The city asked the employee to submit a completed FMLA certification to its HR department. He completed the entire form, including the section titled “Health Care Provider,” which was supposed to be completed by a medical professional based on the professional’s medical knowledge, experience, and examination of the patient. Instead, the employee completed this section based on information from the certification for his prior FMLA leave and his knowledge of his mother’s condition. At his mother’s doctor’s appointment, he presented the form to a registered nurse, who signed it.
The employee presented the FMLA certification to his employer. Shortly thereafter, the commonwealth’s attorney contacted the signing nurse to ask who prepared it. The nurse reported that the employee had said the form was a “work excuse” that he needed signed, and he did not know that he was signing something regarding family medical leave. The commonwealth’s attorney then informed the employee that there was a problem with the certification because he filled out the section that was supposed to be filled out by a medical practitioner.
The employee admitted to completing the form himself but denied deceiving the nurse, saying he told the nurse to make any necessary changes to the information on the form. The employee also offered to take another certification to the doctor’s office so that the medical provider could fill out that section of the form himself.
The commonwealth’s attorney believed that the employee had exercised poor judgment and that what he had done cast doubt upon his honesty. The attorney gave him the opportunity to resign and when he declined, fired the employee.
The employee sued the commonwealth’s attorney and the city, alleging FMLA interference. The commonwealth’s attorney moved for summary judgment on the basis of qualified immunity and the district court denied the motion. It found the alleged actions of the commonwealth attorney to be clearly unlawful under the FMLA regulations, barring qualified immunity. The commonwealth’s attorney then appealed to the 4th Circuit.
On appeal, the 4th Circuit considered the possible application of qualified immunity to the commonwealth’s attorney. For qualified immunity to apply, the public official’s action must not be clearly unlawful at the time performed. Thus, the 4th Circuit considered whether it was not clearly unlawful at the time of discharge for the commonwealth’s attorney to contact the certifying medical provider to authenticate the FMLA certification rather than the employee.
The employee argued that two FMLA regulations, when read together, required the commonwealth’s attorney to first give him an opportunity to cure any deficiencies in the medical certification form, which would include any problem of inauthenticity. The commonwealth’s attorney argued, in contrast, that the only deficiencies that an employer must first give an employee the opportunity to cure were incompleteness and insufficiency.
The 4th Circuit reviewed the two regulations at issue. The first regulation requires employers to seek employee “clarification or authentication” to cure any “deficiencies.” The second regulation describes “deficiencies” to include “incomplete or insufficient” medical certifications.
Thus, the commonwealth’s attorney could reasonably believe that a question of “inauthenticity” did not require him to first contact the employee and provide an opportunity to cure. His question was not an issue of “incompleteness” or “insufficiency” regarding the medical opinion in the certification, but a question of whether the medical practitioner or the employee prepared it. Accordingly, he could reasonably believe that the regulations allowed him to contact the signing nurse immediately when he questioned the medical certification’s authenticity.
The court noted that a question remained of whether the doctrine of qualified immunity even applied to public officials in the context of FMLA claims. Rather than deciding that issue itself, the 4th Circuit reversed the district court's decision and instructed the district court to consider whether qualified immunity should apply to FMLA claims given that the commonwealth’s attorney’s actions were not clearly unlawful.
Mook v. Hall, 4th Cir., No. 25-1677 (Aug. 4, 2026).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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