Intermittent Leave
MS HR
186 Posts
cAN i REQUIRE an employee on intermittent fmla to submit doctor's verification every time she calls in sick?
MS HR
186 Posts
Comments
that's what i thought; only i have a very pushy supervisor and an employee that pushes the limits.
Would someone let me know where this stipulation is located in the REGS? This same question has come up in the past here on the FORUM and also in seminars. I have read the REGS several times and do not remember anything that prohibits an ER from requesting a note to authenticate usage of intermittent FML entitlement hours. Granted there are restrictions on re-certification, but not for documentation of intermittent hours used.
We as HR professionals have an obligation to make sure that the FMLA program is administered properly, fairly and consistently. That means that we need to have proof that the 3 hours that Billy Jim Bob was off last Tuesday for his migraine or the 2 days that Sally Jo took off to take care of her mother indeed qualified under their certifications and they weren't just gone fishing. If we do not have this "documented proof" then we have fallen short on our obligation to properly administer the program. This thinking has been reinforced on several occasions by presenting attorneys at seminars.
Having this documentation also protects the ER from an EE coming back 3-4-5 months later and questioning why they were charged for X number of FML hours and denying that their absence was for a FML reason.
Sorry to be so long and would love for someone to prove me and the attorneys mentioned above wrong.
2) For FMLA leave taken intermittently or on a reduced leave schedule basis, the employer may not request recertification in less than the minimum period specified on the certification as necessary for such leave (including treatment) unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section is met.
(c) For circumstances not covered by paragraphs (a) or (b) of this section, an mployer may request recertification at any reasonable
interval, but not more often than every 30 days, unless:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have
changed significantly (e.g., the duration of the illness, the nature of
the illness, complications); or
(3) The employer receives information that casts doubt upon the
continuing validity of the certification.
The language refers to the minimum period specified on the certification - which could mean anything from a few minutes to ??
[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.305.htm[/url]
in section c, last sentence, it states that the employer "may request certification
at some later date if the employer later has reason to question the appropriateness of the leave or its duration."
1. The EE requests an extension of the leave;
2. The EEs situation as described in the original certification changes dramatically (for better or for worse; or
3. The validity of the original certification is called into question.
The EE has 15 days to submit the recertification. The cost of recertification is born by the EE. For re-cert's there is no 2nd or 3rd opinion option for the ER.
In addition to what the other posters have mentioned, there's another little passage in the regs (29 CFR 825.114 (e)) that states:
"Absences attributable to incapacity under paragraphs (a)(2)(ii) or (iii) qualify for FMLA leave even though the employee or the immediate family member does not receive treatment from a health care provider during the absence..."
In English, this means that if an employee has an approved FMLA for intermittent leave for pregnancy or a chronic serious health condition, they don't have to seek medical treatment for each date that they miss work. So again, the answer is no, you can't require that each day missed be documented with a doctor's statement.
However, under our attendance policy, we require any employee who misses three or more consecutive work days provide us with a doctor's release to return to work. Right or wrong, we apply this equally to FMLA and non-FMLA absences.
I again contend that an ER cannot properly, fairly and consistently administer leave without this documentation and I still have not seen anything in the REGS that tells me I can't require this documentaion.
What says the esteemed legal experts of the forum?
I would love to have your input.
Keep in mind, also, that if you require employees on FMLA to provide a certification each day they are out ill and you don't require this of employees on non-FMLA leave, you have additional problems as the employee could state that they are being discriminated against, or being discouraged to take their leave.
Sorry to beat this to death but I still contend, until someone proves me wrong, that in order to administer the FMLA program properly, fairly and consistently, the ER has a responbibility to request verification of use. As one of the legal experts wrote the other day, this would fall under the "Broadly Inclusive" aspect of the REGS.
I agree that an EE does not have to physically go to an office, but I do think a note faxed from a DR saying that the pollen count on xdate was high and xEE needs / needed to stay home is required. Or a mother that needs to go to a child's school to administer an injection needs to bring a note from the school stating she was there for that purpose.
If an ER is not varying from their policy concerning verification then I do not see any problem.
Properly administering the FMLA can be difficult, especially if you have EEs that are abusing the intermittent leave system. Your approach should cut down on abuse, hopefully your company will not have to write a big check because of it.