Stress

njjel

An employee brought in a letter from his physician that states due to his serious diabetic health condition and the stress of work he (the docotr) certifies that the employee should take the full leave of absence permitted by the FMLA of 12 weeks. Now what say you all? Is stress covered by the fact that his doctor sent us a letter? (I guess his doctor has a crystal ball that tells him he will be stressed for 3 months.)

Don D

Dependant on what the ee's value is to the company, how much of a pain in the butt he has been and will be, how much time you have to fool with this and how many other battles you have available to pick from this week, I might send him for a second opinion at company expense. This is too vague to be legitimate and certainly gives you a window to 'doubt the legitimacy of the certification' as allowed under the regs.

System

You could send him to a second doctor (your expense). But with the diabetes, I'm not sure it would do any good. And during the leave, you can require him to get re-certified periodically. (Every month?)

James Sokolowski
HRhero.com

stilldazed

Another option, which might be a little simpler to manage, would be to start with a tentative FMLA designation of four weeks, notify the employee that the tentative designation is based on a vague/inconclusive description by his/her physician, remind the employee that employer's have the right to ask for more specific information and can expect a response from the employee, and send the DOL medical questionnaire along with a position description to the employee for the doctor to review/complete. Also, take advantage of the opportunity to remind the employee that FMLA doesn't provide wage compensation, and the employee continues to be responsible for benefits premium payments if there was a responsibility prior to the LOA. One of the benefits of the DOL form is that it gives the medical professional an opportunity to identify a fairly specific treatment plan, i.e., calendar of scheduled/needed abenses for specific treatment. I've used it a couple of times. My results when I have taken this step in the past have been mixed, but one thing I've found is that the steps I outlined above help send a message to the employee that we take FMLA seriously. It has the effect of putting the employee on notice that we, as the employer, will attempt to administer FMLA properly and have no intention of sending the employee off for 12 weeks, no questions asked. Obviously, it should be managed carefully so that situations are handled consistently and employees are not made to feel like they are targets if they truly need to be absent from work. It's also cheaper than referring for a second opinion. Finally, the specific and periodic (written) instruction might be helpful in establishing an uncooperative employee, who can have FMLA designation suspended prematurely. If the designation extends longer than four weeks, by all means, ask for recertification monthly, and be firm about the requests. My experience has been that many physicians don't generally understand FMLA. While employers are bound by such legislation, medical practitioners are bound by a hypocratic oath. The two concepts can clash when they are forced to work together, such as in FMLA situations. Also, some physicians are going to be uncooperative when it comes to FMLA and might certify whatever an employee requests. (In a bizarre set of circumstances that eventually worked out OK, we had a chance to experience that several months ago in an FMLA situation.) In those situations, employers' tools are tenacity with attempting to secure follow-up medical certifications, trying to get a true picture no matter what (to help ensure fairness across the board), and referring for second/third opinions. I've also found that uncooperative employees are generally looking for a reason to resign. When I start putting pressure on employees who appear to be abusing the process, we will generally get a resignation letter rather than a recertification.

Whatever

Just to complicate the question..should a claim be filed with the disability carrier, the workers' comp. carrier or both?

stilldazed

Contract language on your disability insurance should dictate whether a claim for disability is filed. If the need to be absent on a continuous basis is legitimate and accompanied by medical certification, and the absence also satisfies specifics for a valid disability claim, there probably should be a claim. But shouldn't your employee file the claim? sign a claim form? maybe after a reminder mention from your office that disability insurance is available (if, in fact, it is)? We are not self insured, and our disability carriers require that claims be initiated by employees through claim forms and that we certify specific employer information; however, we do not initiate the claims process without the employee having filed a claim first. The employee's physician is also required to certify the medical side of the situation (which can be covered by HIPAA and is therefore not generally available to us). And the employee is asked to certify a certain amount of private information. Probably because of HIPAA, the information gathering process is managed from our claims adjuster's office. We are simply one of three sources of information. If all of that doesn't come together, there is no claim payment. As for W/C, check your state's law on what constitutes a W/C claim. Did the employee report that the diabetes is work related? I don't hardly see how it can be, but I guess stranger things have happened. I also thought I understood your first message to imply that the stress resulted from the diabetes. Has the employee implied anywhere (verbally or in writing) that the stress is work related. If so, I would play it safe and report the incident as a potential incident to be investigated. Reporting the claim doesn't necessarily mean there will be a payment, and unless your experience rating is extremely high, one claim with no pay out should hardly be noticed in your premium calculations. If you're self insured, you may have a lot of work to do, and hopefully you have onsite legal counsel to help you through the process. If you outsource claims processing to a W/C insurance carrier, ask your claims adjuster to help investigate. That's part of why they earn the big bucks. Medical records can be made available in a W/C situation (not subject to HIPAA) and will most likely document whether there is a valid W/C claim. Finally, if you find you have a work-related issue, remember OSHA because you may already have a lost-time recordable on your hands if it proves to be work related.