There’s a right way and a wrong way to investigate FMLA fraud, as one employer found out.

Recently, a federal judge concluded that an employer accused of contacting a healthcare provider to confirm its suspicions that one of its employees had submitted a false medical certification interfered with the employee’s rights under the Family Medical Leave Act.

The plaintiff worked as an attorney for the defendant. According to the plaintiff, he needed to care for his mother who suffered from degenerative joint and bone diseases. So, he requested FMLA leave to care for her, and the defendant provided the plaintiff with FMLA paperwork for the mother’s doctor to complete.

Now, here’s where things get fishy.

According to the plaintiff, he completed most of the form, including the section his mother’s physician was supposed to fill out. Then, at a doctor’s appointment for his mother, the plaintiffs gave the form to his mother’s nurse. The nurse “left the room with the form—presumably to discuss the certification with [the doctor]—then returned to the room and signed it” on behalf of the doctor. The plaintiff then returned the completed form to the defendant.

The plaintiff further alleged that upon reviewing the form, HR became suspicious. However, rather than contact the plaintiff directly to discuss its concerns, HR called the doctor’s office to verify who completed the form. The doctor’s office confirmed that “no one in the office—including the doctor and RN—filled out the form” and “[t]he doctor did not authorize anyone to fill it out or sign it on her behalf.” So, the defendant fired the plaintiff.

The plaintiff sued for FMLA interference, claiming that the FMLA regulations forbid an employer from calling a physician to inquire about the authenticity of FMLA paperwork.

The court agreed.

The FMLA regulations state that “an employee must provide a complete and sufficient certification to the employer if required by the employer [and] the employer shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.”

Critically, the regulations also state that “[i]f an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider.” But, an “employer may contact the health care provider for purposes of clarification and authentication of the medical certification…after the employer has given the employee an opportunity to cure any deficiencies…”

Here, the defendant had to contact the plaintiff first to allow him to “cure any deficiencies” in the certification. Instead, the defendant did not allow the plaintiff to authenticate the form before contacting his mother’s doctor—even though it suspected fraud. Then it fired him. That’s FMLA interference.